Costs order was ‘fair’ where barrister forgot to renew his practising certificate, High Court judge finds

Restricting the recovery of a barrister’s fees to work done while he held a practising certificate was not unfair, the High Court judge has ruled.

Damian Delia Francois v London Borough of Waltham Forest  centred on a judicial review brought by Francois against the local authority. Francois instructed barrister Matondo Mukulu, whose fees totalled £3,200, on a direct access basis.

Waltham Forest was ordered to pay Francois’ costs. However, Mukulu had forgotten to renew his practising certificate and did not hold a PC between 1 May and 17 May 2017. He notified Francois and apologised. The High Court judgment acknowledged Francois ‘has not yet made any payments to Mr Mukulu and he has taken no action to recover his fees’.

A final order assessed Francois’ costs at £894, representing Mukulu’s fees for work done while he had a practising certificate. She appealed, arguing a provisional assessment by a costs officer of £2,975 was correct.

Mrs Justice Yip, sitting with costs judge Whalan as an assessor, dismissed the appeal, finding ‘the master was not wrong to limit recovery of Mr Mukulu’s fees to those for work done when he had a practising certificate’. She said: ‘The BSB found clear evidence within Mr Mukulu’s invoice that he held himself out as a barrister when providing services in the period for which he did not have a certificate. I agree. There is no breakdown to show work done as a barrister and work done in another capacity. 

’The administrative sanction (warning) imposed on Mr Mukulu was for holding himself out and practising as a barrister in the context of the work done for the appellant. In those circumstances, there is, at the very least, a serious issue as to whether Mr Mukulu was entitled to charge for services apparently rendered as a barrister at a time he could not act as a barrister.

‘The difficulty the appellant faces…is that she has not in fact made any payments to Mr Mukulu. That formed part of the master’s reasoning for limiting recovery of his fees.’

Francois ‘did not present any evidence to the master or on the appeal to confirm that Mr Mukulu sought to recover those fees’ and ‘given his breach, he may well have decided not to pursue them’, the judgment said.

Recoverable payments which are ‘reasonably made…cannot extend to payments yet to be made in respect of which there are very real issues as to whether they are payable’.

Dismissing the appeal, the judge also found Francois must pay costs of £7,500.