Landlord loses court battle with local authority over costs agreement reached by his counsel

A High Court judge has upheld a costs agreement reached by counsel in a case involving a borough council, rejecting claims by the defendant landlord that he had stopped instructing his barrister before the agreement was reached.

At issue was the £125,000 payment on account of costs awarded to Ashford Borough Council as a result of its lengthy dispute with local landlord Fergus Wilson.

Samuel Davis, of 42 Bedford Row Chambers, who together with Adam Solomon QC of Littleton Chambers acted for Ashford, said Mr Wilson had sought to argue that he should not be bound by the agreement.

But Darryl Allen QC, sitting as a deputy High Court judge, rejected Mr Wilson’s submission and said he would have made a costs order in similar terms to the agreement, which included the £125,000 payment on account.

Judge Allen issued his substantive judgment last September when he granted Ashford a final injunction restraining Mr Wilson from harassing council staff.

He said Mr Wilson had been represented by barrister Alexander Deakin who was instructed under the direct access scheme.

Two proposed orders were settled and an email from Mr Deakin stated: “As discussed on the phone just now. These are agreed.”

In Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB) Judge Allen said: “There was no suggestion whatsoever that he was not instructed by [Mr Wilson], that he was not authorised to agree orders with the claimants or that he did not have instructions to agree the orders which the claimants had in fact proposed.”

But the judge said he then received an email from Mr Deakin which stated: “I have recently been contacted by Fergus Wilson (defendant) who has informed me that I am no longer instructed and he does not agree to the order in respect of costs on account. I am without further instructions and unfortunately cannot add more.”

Mr Allen then asked Mr Wilson with which parts of the draft costs order he disagreed.

In reply, Mr Wilson said: “I would like the issue of costs dealt with by the judge at the Royal Courts of Justice in person.”

He added that Mr Deakin ceased to represent him as early as April 2021 “when he walked out on Stour Chambers” to work elsewhere.

“All outstanding files etc were collected from Stour Chambers some time later. The fees were returned on 11th June 2021,” Mr Wilson said. “Hence when you say 'your barrister' that is not actually the case.”

He added: “I do not believe there should be any order for costs and I wish the opportunity to address the judge in person at the High Court. This matter could and should have been dealt with by an application to the County Court at a cost of under £2,000.”

Turning to Mr Deakin’s ability to agree the costs order on Mr Wilson’s behalf, the latter said: ”I turn to your second page where you say you do not accept that I am able to withdraw the agreement given by my barrister!

“Well, he was not my barrister after 30th April, 2021. He was not instructed! I think he should simply have said 'I am no longer instructed’.”

Mr Allen said it was clear a costs order had been agreed and “the real issue is whether [Mr Wilson] is bound by that agreement”.

He said Mr Wilson had “provided no evidence that he terminated Mr Deakin's direct access instructions/retainer prior to 15 September 2021”, when the cost order was agreed.

The judge said: “[Mr Wilson] equates Mr Deakin leaving his chambers to take up a position as an employed barrister to terminating the direct access instructions.

“That does not follow. There is no evidence that the direct access agreement provided that the instructions would be terminated in the event that Mr Deakin left his chambers.

“There is no evidence that [Mr Wilson] terminated Mr Deakin's instructions. There is certainly no evidence that Mr Deakin considered his instructions to have been terminated.”

Mr Allen also found there was “no evidence at all” that Mr Wilson issued instructions that Mr Deakin was not authorised to agree the draft orders or put any restriction on what could be agreed.

He concluded: “Mr Deakin agreed the costs order which was entirely consistent with and within the ambit of their apparent authority. The parties are bound by that agreement. This is not a case in which the court should exercise its discretion to permit the defendant to withdraw from that agreement.”

Ashford’s costs total £170,000 and it argued that £125,000 was a reasonable payment on account.

Mr Allen said: “I have no doubt that those costs reflect the manner in which the defendant, rather than the claimants, have conducted the litigation.”

Mark Smulian