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Thomas Judge
Thomas Judge, Solicitor Advocate
Category: UK Law
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Experience:  Award winning lawyer with over 15 years experience
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In the gh Court Of Justice A party to the Tomlin Order has

Customer Question

In the High Court Of Justice
A party to the Tomlin Order has breached the terms set out in the Schedule to the Order. The Order (1) that all further proceedings in this case be stayed upon the terms of settlement agreed between the parties and set out in the Schedule to this Order except as to the enforcement of those terms and there be permission to apply under this Order for that purpose.
The party at fault (a solicitor) obtained a Final Remuneration Certificate costs reduced. Then outside the one month Statutory time limit to repay the overpayment or apply for detailed assessment. Made a part 8 claim in the Slough County Court for payment of his legal costs - changed in the same hearing to an application for detailed assessment in the Supreme Court Costs Office. The Court Ordered the Case Transferred. (Note the Schedule agreed and his legal costs were assessed and deducted) Q; Is this rea judicata? (this does involve double billing)
Submitted: 1 year ago.
Category: UK Law
Expert:  Thomas Judge replied 1 year ago.

Was this a term thus of the tomlin order? Can you please explain a little more

Customer: replied 1 year ago.
The terms set out in the settlement agreed (inter alia) I). the Plaintiff (legally Aided) and (9) defendants (all parties) be paid such reasonable sums as they have incurred including their legal costs of this action in connection with the estate of (named person deceased), provided always that the First Defendant's legal costs shall be assessed by Roy Pain, Law Costs Draftsman:
(ii) The Plaintiff do remove the Caveat ....
(iii) The First Defendant as Executor do be responsible for the sale using outside solicitors.. ...
(iv) The 7 defendant do sign transfer.....
(v) The 7 " do transfer
(vi) The proceeds of sale used to pay the sums agreed in Para I) and (iii) and the balance paid to the first Defendant to be distributed in equal shares to 8 defendants. (this was the Schedule agreed) The Order followed; 1) that all further proceedings in this claim be stayed on the terms of settlement agreed between the parties and set out in the Schedule.. etc. & The Court did not see fit to make any order as to costs.
The first defendant Solicitor Executor letter to Roy Pain confirms his "defence file" forwarded for assessment. 14.02.2003. The Claimants Solicitors letter dated 02.05.2003 attached a statement of all legal costs (including the 1st Defendants costs) and confirmed the costs had been deducted from the proceeds of sale in accord with the Order. And the balance will be divided equally as agreed with the executor. - The executor delivered a statement (muddled and inaccurate) this included the legal costs of all parties deducted 02.05.2003. Included in this statement and attached was another bill for administration billed as the legal costs of the solicitor for administration of the same estate dated 29.08.2003. - I took Ind Leg Advice and was advised to make a complaint to the Legal Complaints Service now the SRA The Solicitor obtained a Final Remuneration Certificate Dated 30th June 2004. The Solicitors Non-contentious Business Order did not allow the application. The certificate reduced the bill by almost 50%, and required the solicitor to immediately refund the overpayment unless within one month he had applied for Detailed Assessment. It is this 2nd bill dated 29.08.2003 that the first defendant Now as a Claimant restarted proceedings first as a claim for none payment then when the defence proved it was deducted persuaded the judge to Order the case transferred to the SCCO for detailed assessment. This goes on in a convoluted compendium of Court proceedings and Orders.
Does this give enough detail for you to answer my Question
Expert:  Thomas Judge replied 1 year ago.

From what I have read the principle of the second costs claim should fall very much the same way as the first costs claim. It is your position that it falls within the scope of the Tomlin. The only cavaet would be that if he was legally aided, but that does not appear to the case from what you have written.

Expert:  Thomas Judge replied 1 year ago.

I hope this helps - please rate positive - thanks

Customer: replied 1 year ago.
Note; The Executor is a Solicitor, and from the Statement of the legal costs of all parties submitted to the Claimants Solicitors (who had the duty to account for these costs to the Legal Aid Board) he acted as a LiP and that the list identified that only the Claimant and the 7th Defendant were legally aided.
Your answer leaves me to understand; - that although the Executor Solicitor/first Defendant had his legal costs in this matter including the costs of this action assessed in accordance with the Schedule to the Tomlin Order. (accounted for in the Claimants Solicitors statement of legal costs deducted on the 2nd May 2003), by creating and deducting another bill for the same service on 29th August 2003 in breach of the Schedule to the Order - this corrupts both bills, making both false accounts. As I need to be clear on this, as I can see that where I had got caught up, was that I accepted that because the first bill complied with the Order it was "protected". But your considered professional opinion is that by making the second bill outside the terms agreed it makes both bills improper. Please confirm that my understanding is correct, or clarify simple terms where I have got it wrong.
Customer: replied 1 year ago.
This case is a convoluted compendium of abuse of process. The Solicitor is the sole Executor and Trustee of our parent's estate. (Nine beneficiaries two of whom have since died). Of course he has withheld accounts which he has a duty to disclose. The Law Society Adjudicator made two findings of professional misconduct and three findings of professional service. 1. Offering a settlement which sought to preclude Mr Love from the Law Society......., 2. By advising Mr Love that he may become liable for Judicial Review Costs. and Professional Service 1. Failed to pay Funeral Expenses 2. They issued a summons for their costs when those costs had already been deducted from the Estate. 3. They made errors in the Accounts. The Executor Solicitor did not appeal. (a) In respect of the settlement he offered to give ME £4,000 and drop unlawful charging orders - the £4,000 was the overpayment due from that part of the second bill as per the Remuneration Certificate. (b) The Funeral costs; Correspondence and Executors Statement of costs prove the Executor took the Oath of Executor while knowing a caveat was on Grant of Probate. Then several months later on receipt of a letter from solicitors acting for the firm that carried out the funeral arrangements wrote a DX to them stating his firm was not the Executors. The Funeral Costs remain unpaid. (c) This Claim was changed in the Court (in breach of the statutory time limit and CPR) to an application for detailed assessment the Court Ordered the case transferred. (d) The errors were significant amounts paying a difference of around £4,000 to each of nine. (it does not disclose the disbursements billed within the legal costs and of course the two bills). Following this there are changing court documents without permission. Making other claims where he had already taken the money and making a statement admitting that he had claimed other than due and then after that admission making the claim again. Note I do not state anything that has not got verifiable correspondence and documents in support. .
Expert:  Thomas Judge replied 1 year ago.

As helpful as this service is you would really be best served by either sitting down with a solicitor and letting them see all of the papers or instructing a barrister on direct access to consider this case for you. I say this because someone will need to look at the actual papers and the court orders

Customer: replied 1 year ago.
It is not a very good answer to say I would be better served by the steps you recommended. Under the terms I agreed to when I asked this question, it is my reasonable expectation to state the facts as I believe them, and get an answer that is based on the information I provided. The answer you give to my question would then be based solely on the information I give you. If I give wrong or incomplete information I expect a wrong answer.To put this matter simply; and leaving aside;----- "the matter that the offending party breached the terms of settlement, and billed an additional bill outside the terms agreed and failed to comply with the schedule in all so many ways, and breached the law to obtain a Remuneration Certificate." When the offending party started proceedings in the County Court in the same Matter of the Estate that had been finalised by the Tomlin Order -- (again leave aside that the initial claim for payment - breached CPR and changed to a detailed assessment) and leaving aside all further proceedings. - All this aside;Please answer whether the offending party has abused process in the Case where I can produce a copy of the High Court Order dated 1st March 2002 IN THE MATTER OF THE ESTATE OF MARY KATE LOVE (DECEASED) and a copy of a County Court Part 8 Claim dated 3rd December 2004 IN THE MATTER OF THE ESTATE OF MARY KATE LOVE (DECEASED). ?As I understand things once the settlement is agreed and it has not been appealed, The High Court Tomlin Order is a Final Order - IN THE MATTER OF THE ESTATE OF MARY KATE LOVE (DECEASED). The Order stated; 1) that all further proceedings in this claim be stayed on the terms of settlement agreed between the parties and set out in the schedule to this Order except as to the enforcement of those terms and there be permission to apply under this Order for that purpose.A ‘without jurisdiction’/ultra vires act is any act which a Court did not have power to do (Lord Denning in Firman v Ellis [1978]). andAs I understand it; The very act of starting proceedings in a matter already decided in a previous case, and where a stay had been ordered is abuse of process. The resulting Order from the County Court ordering the costs to be assessed is a void order. In Anlaby v. Praetorius (1888) 20 Q.B.D. 764 at 769 Fry L.J. stated on the issue of void proceedings that:
“A plaintiff has no right to obtain any judgement at all”.
A void order does not have to be obeyed because, for example, in Crane v Director of Public Prosecutions [1921] it was stated that if an order is void ab initio (from the beginning) then there is no real order of the Court.Compliance with practice directions and court orders; Court of Appeal (Re W [2013] EWCA Civ 1177), A Local Authority v. DG [2014] EWHC 63 (Fam) and LB Bexley v. V [2014] EWHC 2187 (Fam)
Compliance with court orders, including interlocutory orders, is to be expected of all parties, including LiPs.