Dammermann v Lanyon Bowdler LLP, Court of Appeal - Civil Division, April 12, 2017, [2017] EWCA Civ 269

Issuing Organization:Civil Division
Actores:Dammermann v Lanyon Bowdler LLP
Resolution Date:April 12, 2017

Case No: A2/2016/0277

Neutral Citation Number: [2017] EWCA Civ 269





Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 12/04/2017





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Between :

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The Appellant appeared in person

Ms Hannah Tildesley (instructed by) for the Respondent

Hearing date: 6 April 2017

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JudgmentLord Justice Longmore and Lord Justice McFarlane:

  1. This is the judgment of the court, to which we have both contributed.

  2. In this appeal Mr Peter Dammermann seeks to overturn a costs order made against him at the conclusion of a first appeal in a case which had been allocated to the Small Claims Track.

    Factual background

  3. The factual background can be shortly stated. Mr Dammermann entered into a legal mortgage with United Trust Bank Limited in February 2002. Mr Dammermann subsequently defaulted on his mortgage payments and, consequently, the bank appointed receivers to sell the charged property under the terms of the mortgage and the Law of Property Act 1925.

  4. The appointed receivers retained a local firm of solicitors, Lanyon Bowdler LLP, to conduct the sale of the charged property. In due course the property was sold and Lanyon Bowdler rendered a bill to the receivers which was duly paid and became part of Mr Dammermann's overall liability under the terms of the mortgage.

  5. By a claim brought in the Telford County Court against Lanyon Bowdler, Mr Dammermann sought to challenge the level of fees charged by that firm for this work. As Lanyon Bowdler had already been paid by the receivers the claimant's claim was, effectively, for a refund of a proportion of the overall charge.

  6. At a hearing on 14 August 2015, Deputy District Judge Holden held that there was neither an agency nor any contractual relationship between Mr Dammermann and the solicitor's firm and that, consequently, he had no standing to make a claim against them. The contract for solicitor's services was between the receivers, who had been appointed by the lenders, and Lanyon Bowdler. In the circumstances the Deputy District Judge dismissed the claim, no order as to costs at the first instance hearing.

  7. Mr Dammermann sought to appeal against the Deputy District Judge's decision. He was granted permission to appeal by His Honour Judge Main QC, following consideration of the papers on 21 September 2015.

  8. In a skeleton argument dated 16 October 2015 counsel then instructed by Lanyon Bowdler, set out a succinct and clear legal argument demonstrating that the principles of the ordinary law of agency were not applicable in the particular circumstances of an agency that exists between a receiver and a mortgagor. Reliance was placed, in particular, on the observations of Hildyard J in an unreported decision relating to administrative receivers, Edenwest v CMS Cameron McKenna (a firm) [2012] EWHC 1258 (CH). The skeleton argument supported the Deputy District Judge's decision and submitted that the appeal should be dismissed ``with costs''.

    The appeal hearing

  9. The appeal was heard by HHJ Main on 14 December 2015. Mr Dammermann appeared in person and Lanyon Bowdler was represented by counsel, Ms Hannah Tildesley. Having heard arguments, the judge, in a relatively detailed judgment referring to the case law relied upon by Lanyon Bowdler, concluded that the contract for services in this case was ``not an agency contract properly so called as known at common law. The principles that would apply to a common law agency contract, do not apply I find on the facts of this case.'' Insofar as the appeal was concerned, therefore, the judge concluded (paragraph 16):

    ``Standing back from this, it is entirely clear to me that the learned district judge, for reasons that she did not actually properly exemplify or set out other than in the most general terms, in fact got the law entirely correct, and that so far as the primary submission made by Mr Dammermann is concerned, it is wrong.''

    and ...

    ``Therefore the primary case presented by Mr Dammermann is simply not right.''

    As a result the appeal was dismissed.

  10. Lanyon Bowdler applied for costs and, following a brief discussion regarding one or two elements of the costs schedule, the judge began to give a judgment seemingly based upon the court having a wide discretion on the issue of costs.

  11. Quite properly, Ms Tildesley sought to interrupt the judge in order to point out that, as this was a case allocated to the Small Claims Track, the court's jurisdiction was proscribed (as I will explain in due course) and Lanyon...

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