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Phillips & Co (a firm) v Bath Housing Co-Operative Ltd [2012] EWCA Civ 1591 (11 December 2012)

Posted: in Civil Litigation Team, General by Michelle Barron.

A solicitors’ claim for costs, billed but not yet fixed by assessment or agreement, fell within the phrase “debt or other liquidated pecuniary claim” in section 29(5)(a) of the Limitation Act 1980. The Court of Appeal so held when dismissing the appeal of the defendant, Bath Housing Co-Operative Ltd, from a decision of 23 August 2011 of Judge Hughes QC, sitting in the Salisbury County Court, holding that the claimant’s claim for the recovery of its fees from the defendant fell within section 29(5) of the Limitation Act 1980, and that the defendant’s letter was an acknowledgment of the claim for the purposes of that section. The judge therefore allowed the claimant’s appeal from the district judge’s decision to dismiss the claim. Section 29(5) provides: “(5) Subject to subsection (6) below, where any right of action has accrued to recover— (a) any debt or other liquidated pecuniary claim; or (b) any claim to the personal estate of a deceased person or to any share or interest in any such estate; and the person liable or accountable for the claim acknowledges the claim or makes any payment in respect of it the right shall be treated as having accrued on and not before the date of the acknowledgment or payment”. The defendant instructed the claimant firm to act for it in possession proceedings. The task was completed in 2003 and since the claimant’s fees had not been agreed it was entitled to claim a reasonable amount for the work done. By letter dated 10 September 2004 the claimant wrote informing the defendant of the amount it claimed was payable as its costs. The defendant replied on 20 September 2004 objecting to the amount sought. On 8 September 2010 the claimant brought proceedings to recover its fees. The defendant relied on the lapse of time under the Limitation Act 1980, more than six years having passed since the work was carried out, and applied for summary judgment. The claimant contended that the defendant’s letter of 20 September 2004 was an acknowledgment under section 29(5) of the Limitation Act 1980 so that the six-year period had started running again and therefore the claim form was issued within six years of the date of that letter. The district judge held that the letter was not an acknowledgment and dismissed the claim. On appeal Judge Hughes QC held the claim fell within the scope of section 29(5) and left the claim to proceed with regard to the other defences. LLOYD LJ said that a solicitor’s claim for fees in circumstances such as the instant, leaving aside cases of contentious or non-contentious business agreements, was a claim in debt, as opposed to damages, in the nature of a quantum meruit, but that it was not quantified unless and until it was either assessed by the court or agreed by the client or was the subject of a judgment, whether or not preceded by an assessment, and that the court’s task was to be carried out by a judicial process by reference to the relevant legislative provisions. Since a claim for a solicitor’s bill, not yet fixed, would have been within the scope of an acknowledgment under the legislation as it stood before 1939, and since it was within the phrase “debt or liquidated demand in money” for the purposes of the Rules of the Supreme Court as they stood not only in 1910 but still in 1939, then it would not seem very surprising to find that it was a claim which was within the new provision in the Limitation Act 1939, now replaced by section 29(5) of the 1980 Act. The instant claim was therefore one which was open to be acknowledged under section 29(5). The defendant’s letter did acknowledge the claim and Judge Hughes QC had been right so to hold and therefore the proceedings were not barred by the lapse of time. LONGMORE and MCFARLANE LJJ agreed. Appearances: Jeremy Burns (instructed by Phillips & Co, Salisbury) for the claimant; Grant Crawford (instructed by Humphreys & Co, Bristol) for the defendant. Reported by: Nicola Berridge, Solicitor.

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