Sibley & Co v Reachbyte Ltd & Anor

An appellate court should interfere with first-instance factual findings only in exceptional circumstances. It must respect the trial judge’s advantage in seeing and hearing witnesses and review the judgment as a whole, without conducting a detailed re-hearing or requiring every submission to be addressed. Where the extent of a solicitor’s retainer is disputed, the client’s account is prima facie preferred in the absence of other clear evidence, because the solicitor is responsible for ascertaining the client’s instructions accurately. The principle is evidential and does not make the client’s account conclusive. Fees for work outside the proved retainer, particularly unusual or extensive work, may properly be disallowed.

Sibley & Co appealed, with permission, against part of Deputy Master Hoffman’s detailed assessment of counsel’s fees incurred while acting for Reachbyte Ltd and Kris Motor Spares Ltd in litigation against Brewin Dolphin. The appeal concerned reductions to fees for conferences, expert evidence, written advice, trial preparation and an adjournment application.

The appellant challenged factual findings, the adequacy of the Deputy Master’s reasons, the application of Gray & Anr v Buss & Merton (a firm), and the assessment of fees. The central questions were whether the Deputy Master’s decision was wrong and whether the evidence established the scope of the retainer.

1. Appeal dismissed. The appeal was governed by CPR 52.11(3)(a) and was limited to a review. The court could intervene only if the Deputy Master’s decision was wrong.
2. An appellate court must afford the greatest respect to factual findings made by a judge who heard and cross-examined the witnesses. It should not substitute its own view merely because it might have reached a different conclusion. The threshold is exceptional: intervention requires material showing that no reasonable judge could have reached the conclusion reached on the evidence. This principle was supported by EPI Environmental Technologies Inc v Symphony Plastic Technologies Inc, Thomas v Thomas, Biogen Inc v Medeva PLC, Piglowska v Piglowska and Smith New Court Securities Ltd v Scrimgeour Vickers (Asset Management) Ltd.
3. The judgment must be read as a whole. A first-instance judge need not deal expressly with every point advanced by counsel, provided the judgment shows the basis on which the decision was reached. Detailed comparison of the judgment with every submission risks turning an appeal into a re-hearing. The principles in Flannery v Halifax Estate Agencies Ltd and English v Emery Reimbold & Strick Ltd did not justify that approach.
4. On the retainer issue, Gray & Anr v Buss & Merton (a firm) was properly understood as stating that, where the scope of a retainer is factually disputed, the client’s version should prima facie prevail in the absence of other clear evidence. The client’s version is not conclusive. The solicitor must ascertain the client’s wishes accurately, particularly where the client may not understand legal terminology.
5. The Deputy Master was entitled to find that the instructions were limited, that extensive additional work had not been authorised, and that the claimed fees were unusual in nature and amount. His reductions, including the allowance of an adjournment fee rather than full brief fees, were within the range reasonably open to him.
6. The Deputy Master had correctly confined the costs assessment to costs issues and had not determined allegations of negligence relevant to separate proceedings. No legal or factual error was established.

The appeal was brought with permission against part of Deputy Master Hoffman’s decision on detailed assessment, delivered on 16 January 2008. The High Court dismissed the appeal.