Judgments

Alpha Rocks Solicitors v Alade

[2014] EWHC 3606 (Ch)

Chancery Division

Kevin Prosser QC sitting as a Deputy Judge of the High Court

4 November 2014

Judgment

                               Oluwole Ogunbiyi (instructed by Alpha Rocks Solicitors) for the Claimant

               Robert-Jan Temmink (instructed by Teacher Stern LLP) for the Defendant

Hearing dates: 15th and 16th January, 29th May 2014

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               Approved Judgment             

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

.............................

               Kevin Prosser QC sitting as a Deputy Judge of the High Court:             

                       A.                       Introduction                     

1.     This is an application dated 9th October 2013 by Mr Alade for an order under CPR Part 3.4(2), or under the court's inherent jurisdiction, to strike out all or part of a claim brought against him by Alpha Rocks, his former solicitors' firm. 

                       B.                       The claim                     

2.     By a claim form dated 13th February 2013 Alpha Rocks claims that Mr Alade owes the following sums:

(i) £131,514.56 fees for acting for him as the defendant in litigation with his brother Rufus before the Central London County Court (Claim No. CHY 08133, "the Rufus litigation"), concerning beneficial ownership of a property in London. I will call this claim "the Rufus claim".

(ii) £15,171 costs incurred by Alpha Rocks in applying in 2010 for a freezing injunction against Mr Alade ("the freezing injunction litigation") in connection with attempts to recover the above fees. Alpha Rocks contends that Mr Alade orally agreed to pay those costs. I will call this claim "the freezing injunction claim".

(iii) £43,732.50 fees for acting for him as the respondent in litigation with Catherine Okang Alade before the Adjudicator to HM Land Registry ("the Catherine litigation"), concerning her registration of a home rights notice against the title to the London property. I will call this claim "the Catherine claim".

(iv) £3,500 fees for acting in litigation with a tenant of the basement flat of the London property ("the landlord litigation"). I will call this claim "the landlord claim".

3.     These sums amount to £193,918.06 in total. Mr Alade has apparently paid £22,210, leaving a balance of £171,708.06.

4.     On 25th March 2013 Alpha Rocks applied for an order for summary judgment in relation to the Rufus claim on the ground that through the agency of his son Mr Alade had admitted that £131,514.56 out of a claimed total of £178,350.20 was owed, and this was heard by Master Price on 29th May 2013. A 15 page bill of costs was referred to, but Master Price noted that the bill was unsigned and there was no proof of delivery, contrary to the requirements of section 69 of the Solicitors Act 1974. Nevertheless, he regarded these as merely technical deficiencies in the context of an admitted sum, and, while he made no order on the application for summary judgment, he ordered Mr Alade to make an interim payment of £131,514.56 plus £5,240 interest. He directed that execution should be stayed until further order save in respect of any application for a charging order over the Property (which was subsequently made). 

5.     Alpha Rocks did not seek summary judgment in relation to any of the other claims. In relation to the Catherine claim, a 1page document was referred to as a bill of costs, but it was conceded that it should be the subject of assessment. In relation to the freezing injunction claim, it was conceded that this was dependent on an oral agreement which was disputed. In relation to the landlord claim, it was conceded that there was no evidence that any bill of costs had been served. 

6.     Mr Alade did not appeal against the interim payment order, but he has not complied with it.  

7.     At a further hearing on 26th July 2013, Master Price directed that Alpha Rocks' claim be referred to the Senior Courts Costs Office for enquiry and report to the Chancery Division as to what sums are due in respect of legal services rendered to Mr Alade.

8.     On 17th September 2013 the matter came before Master Simons in the Senior Courts Costs Office. He commented that he had to be satisfied that there were proper statutory bills. In relation to the Rufus claim, it seems that he was shown the 15 page document mentioned at paragraph 4 above, but when he asked for any covering letter he was told "there is one but it is not here today". In those circumstances, counsel for Alpha Rocks said that his client was content to serve a further statutory bill. In relation to the Catherine claim, counsel for Mr Alade said "There is floating around in the documents a statement of costs which may relate to that matter but certainly does not approach being a statutory bill". This would appear to be the 1 page document mentioned at paragraph 5 above. In relation to the landlord claim, counsel for Alpha Rocks at first said that there was no bill for that, but then said "I am told that there is a bill in the file". Given the absence of covering letters, invoices or other documents, Master Simons directed Alpha Rocks to serve statutory bills by 8th October 2013, with a view to detailed assessment.

9.     However, Alpha Rocks then applied to set aside that order, on the ground that statutory bills had in fact already been served.  In support of that application, Mr Adetoye, a partner in Alpha Rocks, made a witness statement dated 4th October 2013 (it seems that it was not served until a later date) in which "for the purpose of clarity" he identified and exhibited a number of documents which he described as bills of costs. For present purposes I need not refer to the documents relating to the freezing injunction claim, because the freezing injunction litigation was between Alpha Rocks and Mr Alade, and so section 69 of the Solicitors Act 1974 is not in point, and Mr Alade does not challenge the authenticity of these documents. 

10.     For the Rufus claim, Mr Adetoye says that the statutory bill was served on Mr Alade on 24th May 2010 by post. He then exhibits: 

(i) a letter dated 24th May 2010 from Alpha Rocks to Mr Alade at his Nigerian home address, signed by an employee of the firm, Ms Neeti Gandecha, which states that on 19th April 2010 Alpha Rocks handed Mr Alade the "draft cost", and were now attaching their "final bill of costs", and demanded that he pay the full amount on or before 15th May 2010 (see further below regarding this date); 

(ii) an invoice dated 19th April 2010 which states "Acting on your behalf in relation to matters set out in the attached Bill of Costs";

(iii) a number of counsel's fee notes;

(iv) a 15 page document headed "Defendant's bill of cost". This appears to be the document mentioned at paragraphs 4 and 8 above. It states that 321 hours 34 minutes (divided into 241 hours 34 minutes at £350 per hour which was the charge out rate for a partner, 62 hours at £250 per hour which was the charge out rate for a solicitor, and 18 hours at £175 per hour which was the charge out rate for a case worker) had been spent on documents as detailed in a 7 page schedule. The schedule records that on 22nd March 2010, 480 minutes (8 hours) was spent on work described as "Considered, perused and studied in full detail client's entire file of papers to prepare trial bundles", and that between 23rd March 2010 and 7th April 2010 a further 6,450 minutes (107.5 hours) was spent on work described as "Continued perusal and preparation of trial bundle". It is not possible to ascertain from this how, if at all, the 115.5 hours' work was divided between a partner, a solicitor and a case worker, and therefore what the total charge for this work is. But it must be at least £34,225 (on the basis that 62 hours were spent by a solicitor, 18 hours by a caseworker, and the rest by a partner) and at most £40,425 (on the basis that the work was all done by a partner). 

(v) as proof  that the letter had been posted to Mr Alade in Nigeria, a Post Office receipt dated 24th May 2010. 

11.     For the Catherine claim, Mr Adetoye says that the statutory bill of costs was served on Mr Alade at Alpha Rocks' office in the presence of his son on 16th January 2012. He then exhibits:

(i) a letter dated 16th January 2012 from Alpha Rocks to Mr Alade at his Nigerian home address which states "Please find enclosed our bill of costs for acting for you in the above case which we successfully concluded for you";

(ii) an invoice of the same date in the sum of £43,732.50 which states "Acting on your behalf in relation to matters set out in the attached schedule", giving the dates as from 28th July 2010 to 16th January 2012;

(iii) a fee note dated 20th February 2012 from Mr David Holland QC charging fees of £8,750 plus VAT for work done between 11th October 2011 and 16th January 2012;

(iv) a 6 page document headed "The Respondent's bill of costs to be paid by the Respondent or be subjected to Solicitors Act assessment if not agreed". This describes the Catherine litigation, including: "The applicant withdrew her application after the hearing on 16.1.12 on grounds of ill health. The court made an order dismissing [the] application on 28.2.12 and the client was advised accordingly. Case was conducted by solicitor and partner Mr Timothy Spooner with a charge out rate of £350/hr. Routine items of letters and telephone calls are charged at £35/each." Then work done between 11th August 2011 and 21st March 2012 is itemised, consisting of about 78 hours' work, and a total of 116 letters or telephone calls. Items 7 and 9 state that Mr Holland QC's fees were paid. Under the heading "documents", item 24 refers to an attached schedule, and there is a "total timed attendances" of 71 hours 37 minutes, for which £25,065.83 is charged. Item 25 states that a costs draftsman was paid £1,500 to consider the file and thereafter prepare a detailed breakdown for the bill of costs.

12.     For the landlord claim, Mr Adetoye says that the statutory bill of costs was served on 19th March 2012. He then exhibits:

(i) a letter dated 19th March 2012 from Alpha Rocks to Mr Alade at his Nigerian home address, which states: "Please find enclosed our bill of costs for acting for you in the above case";

(ii) an invoice of the same date, which refers to "Breakdown of costs set out in the attached schedule";

(iii) a number of counsel's fee notes;

(iv) a 5 page document headed "Claimant's status bill for Solicitors Act assessment", itemising work done on the landlord litigation.

                       C.                       This application                     

13.     Mr Alade applies to strike out all or parts of Alpha Rocks' claim on a number of grounds.

14.     First, he contends that, when the claim was brought on 13th February 2013, Alpha Rocks had not delivered bills complying with section 69 of the Solicitors Act 1974, and so there was no cause of action in relation to the Rufus, Catherine and landlord claims, and therefore those claims must be struck out. In the light of the authorities mentioned at paragraph 24 below, however, Mr Alade contends in the alternative that I have a discretion to strike out the three claims, and that I should exercise that discretion because of the original failure to deliver statutory bills combined with abuse of process as mentioned below.

15.     Secondly, he applies to strike out the entire claim, alternatively the Rufus, Catherine and landlord claims, as an abuse of process. As regards the Rufus claim, he contends that the letter dated 24th May 2010 and the invoice dated 19th April 2010 are recent creations, and he also contends that the 15 page bill of costs is deliberately exaggerated, in that the trial bundle was prepared by Rufus' solicitors, not by Alpha Rocks at all. As regards the Catherine claim, he contends that the letter and invoice dated 16th January 2012 are recent creations, and he also contends that the 6 page bill of costs is deliberately exaggerated, in that the work was actually carried out by case workers (whose charge out rate was much lower than that of a partner) and not by Mr Spooner at all; and in addition the bill falsely states that Alpha Rocks has paid Mr Holland QC's fees in full. As regards the landlord claim, he contends that the letter and invoice dated 19th March 2012 and the 5 page bill of costs are all recent creations.

16.     Thirdly, he applies to strike out the freezing injunction claim on the ground that there is no evidence of any agreement to pay Alpha Rocks' costs, and therefore there are no reasonable grounds for bringing that claim.

17.     Fourthly, he applies to strike out the landlord claim on the ground that Alpha Rocks was never instructed to act for him in the landlord litigation, and therefore there are no reasonable grounds for bringing that claim. 

18.     Fifthly, he contends that the entire claim should be struck out because of Alpha Rocks' repeated failure to comply with court orders.

19.     If Mr Alade's application to strike out the Rufus claim fails, then he applies in the alternative for an order varying the interim payment order mentioned at paragraph 4 above, by requiring the payment to be made into court, and not to Alpha Rocks.

                       D.                       Approach to this application                     

20.     Alpha Rocks contends that this application is itself an abuse of process and a vexatious application, because it is aimed at prejudicing the ongoing costs assessment; that since the issues raised in the application are related to Alpha Rocks' costs, the Senior Costs Office should be allowed to complete its assessment and therefore there is no justification for this application; that most of the issues were raised at the hearing before Master Price and were conclusively dealt with; and that it is in any event too late for Mr Alade to challenge the Rufus claim, given that an interim payment order was made and Mr Alade did not appeal against it.

21.     I do not agree with these contentions. The task of the Senior Courts Costs Office is to enquire as to what sums are due to Alpha Rocks for services rendered. My task is the very different one of determining whether the claim should be struck out; if or insofar as it should, Mr Alade should not be put to the time and trouble of a detailed assessment. Next, none of the issues before me were considered, let alone dealt with, by Master Price. And as for the interim payment order, Master Price did not give Alpha Rocks summary judgment on the Rufus claim, and in any event no question of fabrication of documents or deliberate exaggeration of fees had arisen at that stage, and in these circumstances I do not consider that the making of the interim payment order precludes me from considering these issues.   

22.     On the other hand, in considering this application I must avoid a mini-trial or a lengthy and detailed examination of the facts. I must also be aware of the dangers of coming to factual conclusions without the benefit of disclosure and oral evidence where the credibility of witnesses is at stake, and in particular where, as here, serious allegations of deliberate over-inflation are being made. That does not mean that I must necessarily take at face value and without analysis everything that is said in witness statements.

                       E.                       Failure to comply with section 69 of the Solicitors Act 1974?                     

23.     Section 69 provides that no action shall be brought to recover costs due to a solicitor before the expiration of one month from the date on which a bill of those costs, signed by the solicitor or on his behalf by an authorised employee or enclosed in or accompanied by a latter so signed, is delivered to the client.   

24.     As already mentioned, Mr Alade contends that the Rufus, Catherine and landlord claims must be struck out because when the claim was brought on 13th February 2013 Alpha Rocks had not served bills complying with section 69. 

25.     However, the fact that a bill of costs fails to comply with one or more of these requirements does not mean that it must necessarily be struck out without consideration of the merits. The court has jurisdiction to allow the solicitor in special circumstances to withdraw a defective bill and re-serve it: see Chappell v Mehta [1981] 1 All ER 349 per Lawton LJ, and the decision of the Privy Council in Alceo Zuliani v Vernon S. Veira Co [1994] 1 WLR 1149. See also Hakendorf v Vyvian [2004] EWHC 2821 at paragraphs 62-68, where Tugendhat J. gave permission to the solicitor to re-serve the bill, and also indicated, with reference to the overriding objective, that if he had had before him an application to strike out the case under CPR 3.4 as disclosing no reasonable grounds for bringing the proceedings, he would, in the exercise of his discretion, have refused to make the order in the light of the permission that he had given to the solicitor. Alternatively, he would have made the order only on such terms as would enable a properly constituted claim to have been brought without need for any delay. 

26.     In the present case, Master Simons ordered Alpha Rocks to deliver bills complying with section 69, without any apparent objection from Mr Alade. It is accepted that such bills were delivered, albeit as attachments to Mr Adetoye's witness statement, before the stage for detailed assessment of the fees. In these circumstances, if there were no question of recent creation of documents or other abuse of process, as to which see below, I would refuse to strike out on the ground that the bills had not been delivered before the claim was brought. 

                       F.                       Recent creation of documents?                     

27.     Mr Alade contends, and I agree, that one would have expected that the various bills, covering letters and invoices now relied on by Alpha Rocks as mentioned at paragraphs 10 to 12 above, to have been referred to before 4th October 2013, for example in the pleadings and in witness statements, and to have been produced at previous hearings, for example those before Master Price and Master Simons. Mr Alade contends that the reason why Alpha Rocks did not refer to or produce those documents is because they did not exist at the time, and are a recent creation.

                   (i) the Rufus documents                  

28.     In a witness statement dated 30th October 2013, Mr Alade says that he never received the Alpha Rocks letter dated 24th May 2010, and that he first saw it, and the invoice dated 19th April 2010, following service of Mr Adetoye's witness statement dated 4th October 2013. He says that the letter is curious because although it is dated 24th May it asks for payment of fees by 15th May. 

29.     I am prepared to accept that Mr Alade did not receive the letter and invoice, but on the evidence before me I do not accept that Alpha Rocks did not send them to him on 24th May 2010. Nor do I accept that the invoice was not produced on 19th April 2010. I think that the letter requested payment by 15th May is because the contents of the letter were probably "cut and pasted" from an earlier letter to Mr Alade dated 23rd April 2010. I reach that view in the light of a witness statement dated 21th May 2010 by Mr Nnanna Wagbaranta, then a former partner in Alpha Rocks, made for the purposes of obtaining the court's permission for the issue of a claim form in the freezing injunction litigation. He stated that at the conclusion of the Rufus litigation he gave all the files to the firm's costs draftsman, who created a bill of costs covering the work done on the case between May 2008 and 16th April 2010. He said that he personally gave the bill of costs to Mr Alade on 19th April 2010, and that he sent a copy of it by post under cover of a letter dated 23rd April 2010 signed by him. He acknowledged that because at that time he was neither a partner nor an employee of Alpha Rocks, the bill might be defective, and he therefore proposed to send the bill again to Mr Alade at his Nigerian home address on 24th May 2010 together with a covering letter signed by an employee of the firm.

30.      I therefore consider that Mr Wagbaranta did indeed send the bill of costs for the Rufus litigation again, with the covering letter dated 24th May 2010. This is supported by the Post Office receipt of the same date.

                   (ii) the Catherine documents                 

31.     In his witness statement Mr Alade says that he never received the letter and invoice dated 16th January 2012, and first saw them, and the 6 page document headed "The Respondent's bill of costs to be paid by the Respondent or be subjected to Solicitors Act assessment if not agreed", following service of Mr Adetoye's witness statement dated 4th October 2013. He states that the letter dated 16th January 2012 is very odd because the Catherine litigation had not been concluded by that date.

32.     I agree that the letter is very odd. It is indeed clear that as at 16th January 2012 the Catherine litigation had not been concluded, and that it was only events after that date which indicated that it would be successfully concluded. That is, on 6th February 2012 Alpha Rocks received a letter dated 3rd February 2012 from the Adjudicator to HM Land Registry enclosing a letter from Catherine's daughter dated 24th January 2012 stating that it had become necessary for Catherine to withdraw her case due to ill health. In the light of this, the Adjudicator subsequently dismissed Catherine's application. 

33.     Equally odd is the fact that the 6 page bill of costs, supposedly enclosed with the letter dated 16th January 2012, itself recites these post-16th January events, for it states "The Applicant withdrew her application after the hearing on 16.1.12 on grounds of ill health. The court made an order dismissing application on 28.2.12 and the client was advised accordingly". 

34.     Indeed, it is clear from the 6 page bill that part of the £43,732.50 total charge referred to in the invoice and in the bill itself is for work carried out after 16th January 2012. That is, under "Attendances upon the Respondent" the bill records: "5.2.12 Non routine call advising on the withdrawal of claim by the Applicant and advising 35 mins". This forms part of the total timed attendances of 3 hours 55 minutes for which £1,370.83 is charged. Likewise, under "Documents Item 24 see attached schedule" with total timed attendances of 71 hours 37 minutes for which £25,065.83 is charged, the bill records "5.2.12 Considered notice of withdrawal received from the applicant including enclosures Engaged 30 mins" and "7.3.12 Perused Order received from the Land Registry 12 mins" and "21.3.12 Prepared outcome letter of case to client 36 mins". 

35.     Thus, not only does the 6 page bill of costs refer to those post-16th January 2012 events, and thereby confirm that the Catherine litigation had not been concluded at that date, but it also charges Mr Alade for 1 hour 53 minutes' work spent after 16th January 2012, forming part of the total charge of £43,732.50. 

36.     In these circumstances, it is indisputable that, as at 16th January 2012: (i) Alpha Rocks cannot have believed that they had "successfully concluded" the Catherine litigation, (ii) Alpha Rocks was not in a position to issue an invoice for £43,732.50, and (iii) the 6 page bill of costs did not then exist. 

37.     I remind myself of the dangers of coming to factual conclusions without the benefit of disclosure and oral evidence where the credibility of witnesses is at stake, and in particular where, as here, serious allegations of deliberate over-inflation are being made. Nevertheless, it inevitably follows from the indisputable facts mentioned at paragraph 36 above that the letter and invoice both dated 16th January 2012, and the 6 page bill of costs, must all have been produced after that date, with the result that Mr Adetoye's witness statement dated 4th October 2013, to the effect that those documents were served on Mr Alade on 16th January 2012, is untrue.

                    (iii) the landlord documents                 

38.     In his witness statement Mr Alade maintains that he never received the letter and invoice dated 19th March 2012. 

39.     However, the fact that Mr Alade did not receive the documents does not mean that they were not sent. And it does not follow from Alpha Rocks' failure before 4th October 2013 to refer to or rely on the documents that they are a recent creation. There are other possible explanations for the failure, such as confusion on the part of someone at Alpha Rocks as to the need for, or as to what is, or is not, a statutory bill.

                   G. Deliberate exaggeration of fees?                 

               (i) the Rufus bill of costs             

40.     As I have mentioned, the 15 page bill of costs states that 8 hours were spent on 22nd March 2010 on perusing files "to prepare trial bundles", and a further 107.5 hours were spent between 23rd March and 7th April 2010 on continued "perusal and preparation of trial bundles". Mr Alade contends that in this respect the bill is deliberately inflated, in that Alpha Rocks did not prepare trial bundles, which were actually prepared by Rufus' solicitors.

41.     It is clear that Rufus' solicitors, Osbornes, did indeed prepare the trial bundle. By order dated 26th June 2009, District Judge Lightman ordered Rufus, as the claimant in the Rufus litigation, to prepare and file a trial bundle in accordance with the Practice Direction to CPR part 39. The fact that Osbornes complied with this order is confirmed by Rufus Alade, who by email dated 25th September 2013 to Teacher Stern LLP, Mr Alade's solicitors, stated that the trial bundle, consisting of 8 files, was prepared by Osbornes, who charged £10,000 for that work; and further confirmed by Ms Shilpa Mathuradas, a partner of Osbornes, in an email dated 15th January 2104 to Mr Rajesh Pabla, an assistant solicitor at Teacher Stern, and also in a witness statement dated 24th January 2014.

42.     Moreover, there is correspondence between Alpha Rocks and Osbornes which shows that Alpha Rocks knew that Osbornes were preparing the trial bundle. For example, in a letter dated 26th March 2010 Alpha Rocks refer to "the list you sent us for the trial bundle" and said "We have gone through our files and checked our records", and that they were sending Osbornes "a list of some documents which we want you to add to the bundle". And in a letter dated 31st March 2010 Alpha Rocks said "You have not come back to us on whether or not you have included those documents in the bundle". This correspondence indicates that by 26th March 2010 Alpha Rocks had gone through their files in order to decide what documents should be included in the trial bundle being prepared by Osbornes. 

43.     Counsel for Alpha Rocks sought to meet the allegations of exaggeration of the Rufus bill of costs by telling me, on instructions, that Alpha Rocks had actually produced parallel trial bundles of their own, because there was no order directing Osbornes to produce trial bundles. However, those instructions are plainly untrue: such an order was made by District Judge Lightman, as mentioned at paragraph 40 above. 

44.     Subsequently, counsel for Alpha Rocks applied to adduce new evidence, relating to the preparation of trial bundles and other matters. I acceded to this application, on the ground that I was very reluctant to strike out the claim on the basis of serious allegations of misconduct by a firm of solicitors if there was evidence to rebut those allegations, evidence which Alpha Rocks had failed to adduce because they had adopted a mistaken approach to the strike -out application. In those circumstances I gave permission to Alpha Rocks to put in new evidence, but also agreed to an adjournment in order to give Mr Alade time to consider Alpha Rocks' new evidence, and to respond to it with further evidence of his own.  

45.     Alpha Rocks' new evidence is a further witness statement dated 16th January 2014 made by Mr Adetoye, who says that the "suggestion that [Alpha Rocks] did not prepare any trial bundles...was untrue as both sides prepared trial bundles. Though the parties tried to cooperate as much as possible in exchanging documents but [sic] the matter was far too complex and extremely large because the matter concerned issues dating back to about half a century." He then exhibited the two letters from Alpha Rocks to Osbornes to which I refer at paragraph 42 above.

46.     I regret to say that I find this evidence wholly unconvincing, for seven reasons. First, it is not supported by the two letters relied on; on the contrary, those letters indicate that the parties had no difficulty in cooperating so as to enable Osbornes to produce the trial bundle. Secondly, Mr Adetoye had no involvement in the Rufus litigation, but he does not reveal the source of his statement that both sides prepared trial bundles. Thirdly, there is no evidence of any correspondence with Osbornes regarding the preparation of parallel trial bundles. Fourthly, nor is there any evidence of an application to the court by Alpha Rocks to use a parallel bundle. Fifthly, where the parties are unable to agree the contents of the bundle they are required to include a summary of the points on which they are unable to agree, but there is no evidence of this having been done. Sixthly, Alpha Rocks brought into court a number of files which counsel told me, on instructions, were the parallel bundles, but these files appeared to me merely to be unpaginated documents collated from the draft index provided by Osbornes. Seventhly, by her witness statement dated 24th January 2014 Ms Mathuradas says she had the main conduct of the litigation for Rufus and that "Alpha Rocks did not serve any bundles purporting to be trial bundles upon Osbornes. In addition, Alpha Rocks did not serve an alternative index to the trial bundle and at trial both sides in the proceedings relied upon the index and bundle that Osbornes had prepared." 

47.      I remind myself yet again of the dangers of coming to factual conclusions without the benefit of disclosure and oral evidence where the credibility of witnesses is at stake. On the other hand, I have already rejected the evidence of Mr Adetoye as untrue. In the light of the points made at paragraph 46 above I am driven to the conclusion that I must reject Mr Adetoye's evidence about the trial bundles also. And in the light also of the evidence mentioned at paragraphs 41 and 42 above I am driven to the further conclusion that Alpha Rocks did not prepare parallel trial bundles.

48.      Moreover, I do not think is it possible that the reference in the 15 page bill of costs to "continued preparation of trial bundles" is to Alpha Rocks continuing to search through files in order to identify documents for inclusion in the trial bundle being prepared by Osbornes. This is so for three reasons. First, because there is no evidence that Alpha Rocks was doing this. Secondly, on the contrary, the correspondence mentioned at paragraph 42 above indicates that Alpha Rocks had completed that task by 26th March 2010, but the bill of costs records 72.5 hours spent after that date on "continued perusal and preparation of trial bundle". Thirdly, because Mr Adetoye does not claim that this was the nature of the work being done. 

49.     It follows, in my opinion, that in stating that Alpha Rocks spent 115 hours on the preparation of trial bundles, the bill of costs is false. Thus, in charging Mr Alade for work that was not done, Alpha Rocks has exaggerated the fees. Moreover, in the absence of any evidence that the bill was produced by mistake, and in the light of the repeated insistence that Alpha Rocks did prepare trial bundles, I cannot avoid the conclusion that the exaggeration is deliberate.

                    (ii) the Catherine bill of costs                  

50.     As already mentioned, the 6 page bill of costs headed "The Respondent's bill of costs to be paid by the Respondent or be subjected to Solicitors Act assessment if not agreed" states that work on the Catherine litigation was carried out between May 2011 and 21st March 2012 by a partner, Mr Timothy Spooner, at a charge out rate of £350 per hour, with routine items of letters and telephone calls charged at £35 each. Mr Alade contends that the bill is deliberately exaggerated, in that all of the work was actually carried out by case workers (whose charge out rate was £175 per hour), and not by Mr Spooner at all. 

51.     Much of the evidence given in support of this contention was actually directed at challenging the accuracy, not of the 6 page bill of costs, but instead of a 1 page document headed "Statement of costs for a hearing of 16th January 2012", to which I have already referred at paragraphs 5 and 8 above.  This is because at the end of September 2013 those acting for Mr Alade assumed that Alpha Rocks was relying on the 1 page document as the bill of costs. This was a reasonable assumption to make, given that Alpha Rocks had previously referred to and relied on that document as a bill of costs. It was only when the witness statement of Mr Adetoye dated 4th October 2013 was served that it became clear that Alpha Rocks is actually relying on the 16 page bill.

52.     The 1 page document states that over 145 hours' work in total was carried out on the Catherine litigation, by: Mr Spooner, partner, charged out at £250 per hour, 68 hours 15 minutes; Mr Faniyi, also a partner, and also charged out at £250 per hour,15 hours; and Ms Gandecha, employed by the firm as a case worker, charged out at £175 per hour, 62 hours 24 minutes. The total costs are £43,732.50.

53.     Evidence was given on behalf of Mr Alade to the effect that Mr Spooner and Mr Faniyi did no work at all on the Catherine litigation, the work having been done instead by Mr Abu-Doosah, a case worker, with some help from Ms Gandecha.

54.     I do not intend to refer to any of this evidence, because it was challenged by Alpha Rocks who, in my opinion, succeeded in casting some doubt on its credibility.

55.     Surprisingly, Alpha Rocks did not rebut the contention of exaggeration by producing the underlying time-sheets or other files stating what work was done and by whom, in order to show that Mr Spooner did do all the work stated in the 6 page bill of costs. Nor was any explanation given as to why those documents were not being produced.

56.     Instead, Alpha Rocks challenged the evidence by casting doubt on the honesty of various of its former partners and employees.

57.     In any event, in the course of doing this, Alpha Rocks produced evidence of their own which, in my opinion, shows very clearly that the 6 page bill of costs is a wholly inaccurate record of the work done on the Catherine litigation. Indeed, the evidence shows that the author of the 6 page bill knew when he produced it that it was inaccurate. 

58.     Thus, in his witness statement dated 16th January 2014 Mr Adetoye states that he can "confirm from the record" that Mr Faniyi did work on the Catherine file, and he exhibits a number of documents showing that the file was in Mr Faniyi's name.

59.     Mr Adetoye also states that Mr Spooner "had overall supervision" of the firm's work on the Catherine litigation.

60.     As to the identity of the person being supervised, it appears to me to be highly likely that this was, or includes, Mr AbuDoosah, a case worker. There is a "client care letter" dated 30th September 2010 from Alpha Rocks to Mr Alade which states that "day to day work will be carried out by a case worker, Mr Abu-Doosah". The fact that he did indeed carry out such work is evidenced by the fee note dated 20th February 2012 of Mr Holland QC, which identifies Mr Abu-Doosah as the "contact" at Alpha Rocks.

61.     It is not clear whether Ms Gandecha was also being supervised. In an email to Teacher Stern she said, amongst other things, that she did do some work on the Catherine litigation. But in his witness statement Mr Adetoye says that Alpha Rocks "totally denied what Ms Gandecha said in her email". It is not clear whether Alpha Rocks is thereby denying that she did any of the work. If so, that is consistent with the 6 page bill of costs, but it means that the 1 page document is inaccurate. 

62.     In addition to Mr Adetoye's witness statement, there is also a witness statement dated 16th January 2014 made by Mr Wasiu Abiola Otunuga, a costs draftsman at Alpha Rocks. He says that the 1 page document mentioned at paragraph 52 above was submitted to the Adjudicator to HM Land Registry, and that he prepared the 16 page bill of costs "relying on" the 1 page document. 

63.     Mr Otunuga also says that total costs exceeded "the estimate" of £43,732.50, but "the final statutory bill has to be limited to £43,732.50 as that is the amount in the statement of costs dated 16.1.12 to ensure indemnity principle is not breached. That is the reason the breakdown of costs had a total amount of £43,732.50 as that is the limit that should not be exceeded". 

64.     This makes no sense at all. First, it does not explain why Alpha Rocks submitted to the Adjudicator a document showing costs of £43,732.50 when the actual costs exceeded that amount. Secondly, the indemnity principle limits the costs which a party may recover to those which he must pay to his own solicitor; it does not limit the costs which a party must pay to his solicitor to those which he has recovered from another party. 

65.     But whatever may be the true explanation for the fact that the costs figure in both documents is £43,732.50, what Mr Otunuga is saying is that he drew up the 6 page bill of costs knowing it to be inaccurate.

66.     I am not in a position to conclude that the 6 page bill of costs is exaggerated. But I am driven to the conclusion that the bill is inaccurate and that it was produced knowing it to be inaccurate. 

67.     As I have already mentioned, the 6 page bill of costs states that Alpha Rocks has paid Mr Holland QC's fees of £8,750 plus VAT in full.

68.     In fact, however, on 21st October 2013 Mr Holland's clerk emailed Mr Pabla at Teacher Stern to say that £3,750 was paid on 5th March 2012 and there was still £5,000 plus VAT outstanding.

69.     This is so notwithstanding that it appears that by May 2012 Mr Alade had put Alpha Rocks in funds to pay the fees in full.

70.     I conclude that the 6 page bill is inaccurate in this respect also. However, I am not in a position to say that the inaccuracy was deliberate.

                   H. The freezing injunction claim: no evidence of an oral agreement?                  

71.     In my opinion, this application is not an appropriate forum to determine whether Mr Alade entered into an oral agreement to pay Alpha Rocks' costs of the freezing injunction litigation. 

                   I. The landlord claim: no instructions?                 

72.     Mr Alade was not the claimant in the landlord litigation. Instead, the claimant was a Mr Raphael Fagbolagun. Alpha Rocks says that Mr Fagbolagun acted on Mr Alade's behalf of Mr Alade as his managing agent to let the basement flat of Mr Alade's London property to a Mr Alex Biondi, and similarly acted on his behalf to recover possession of the flat for non-payment of rent. Mr Alade points out the absence of any retainer letter. 

73.     Again, in my opinion, this application is not an appropriate forum to determine whether Mr Alade appointed Mr Fagbolagun to act as his agent, including for the purposes of the landlord litigation.

                   J. Strike out for abuse                  

74.     In my opinion, Alpha Rocks are guilty of abuse of process in bringing the Rufus claim in reliance on deliberately exaggerated fees, and in bringing the Catherine claim in reliance on fabricated documents and on a bill of costs which was drawn up knowing it to be inaccurate.

75.     In these circumstances I have power to strike out those claims. In considering whether or not to do so, I bear in mind that it is a draconian step because it would extinguish substantive rights. However, the abuses which I have identified both involve a serious misuse of the court's procedure. Moreover they render further proceedings thoroughly unsatisfactory and create a serious risk that a fair trial of the claims would be impossible. In addition, it would be unfair on Mr Alade to subject him to the time and cost involved in a detailed assessment of the claims. In these circumstances I have no hesitation in refusing to allow Alpha Rocks to take further part in the proceedings so far as those claims are concerned, and I shall strike them out accordingly.

76.     On the other hand, I consider that it would be disproportionate, and unfair on Alpha Rocks, also to strike out the freezing injunction and landlord claims, merely because they have been brought together with the Rufus and Catherine claims. Moreover, although it appears that Alpha Rocks have failed from time to time to comply with timetables, practice directions and court orders, I think it would be disproportionate to strike out any of the claims on this ground. Therefore I shall not strike out the freezing injunction or landlord claims.