No5: Successful applications
A dispute between a leading chambers and a barrister over £71,200 of contributions that he allegedly failed to make is set to go to trial later this month.
The dispute between No5 Chambers Ltd – the management company of the Birmingham-based set – and Paul Marshall, who was a tenant between 2012 and 2016, came into the public domain with a recent ruling striking out various paragraphs from his witness statement.
Recorder Graeme Robertson in Central London County Court said [1] that members of No5 had to pay a basic 15% of their receipts (but on a reducing sliding scale), plus £200 per month as a contribution towards communal expenses, and an additional sum if they had an office within the chambers’ premises.
It claims £71,200 from Mr Marshall in respect of unpaid invoices plus interest, and an order for an account for all payments he received in relation to which contributions were payable to chambers.
Recorder Robertson said: “The primary issue in this case appears to be a question about the legal identity of the claimant party (i.e. whether the entity to which Mr Marshall is obligated to pay his chambers’ expenses is properly represented by the claimant or the heads of chambers)
The trial is listed for 20 April and last month’s hearing concerned whether Mr Marshall’s witness statement complied with PD 57AC, as paragraph 4.3 of directions issued a year ago said the practice direction would apply as though the trial were one in the Business and Property Courts.
The judge said the statement “contained numerous paragraphs that were not, on any view, compliant with PD 57AC and the statement of best practice appended to it”.
He went on: “There was no certificate of compliance from the defendant or his legal representatives (as required by paragraphs 4.1 and 4.2 of PD 57AC). Parts of the statement rehearsed the content of documents or set out a narrative derived from those documents, consisted of argument and included commentary on other evidence in the case (all contrary to paragraph 3.6 of the statement of best practice).
“The defendant accepts that certain paragraphs, some 30 of them, were non-compliant, and he subsequently agreed to remove those paragraphs and served an amended statement.
“Remarkable as it may seem, it is said that the defendant’s legal advisers simply overlooked paragraph 4.3 of Recorder Midwinter’s order. The defendant offered his apologies to the court in Mr Segal’s skeleton argument, and he has expressed his regret to the claimant.”
But No5 wanted more paragraphs excised and the judge agreed in relation to most of those in dispute.
“When I read the disputed paragraphs, it was obvious to me that some of them, at least, were non-compliant with PD 57AC on their face,” said Recorder Robertson.
“How, then, Mr Marshall and his solicitor Mr Kushner felt able to sign the statement of compliance is far from clear to me. The breaches in the paragraphs I have struck out were not minor. They were substantial.
“I do not make that criticism lightly, particularly as Mr Kushner has not given evidence, but it is important to stress – in general terms – that practitioners must exercise proper judgement over witness statements generally, and those to which PD 57AC applies in particular.”
He also acceded to No5’s application for specific disclosure of statements from bank accounts into which Mr Marshall received payments for work done while a member of the set. The barrister failed to provide them earlier as part of standard disclosure.
The recorder ordered Mr Marshall to pay 80% of the costs of the application, amounting to £8,233, and disallowed him from recovering 35% of his costs of preparing the trial witness statement should he successfully defend the claim.
He also revealed that the case has been costs budgeted to roughly £100,000 for No5 and £117,000 for Mr Marshall, who practises from Cornerstone Chambers.