The High Court has criticised parties suing their ex-solicitors for issuing the claim at night and engaging in ‘intemperate’ email exchanges.
Claimants in Camran Mirza & Ors v CMS Cameron McKenna Mabarro Olswang LLP sought a declaration that monies paid to the international firm were held on trust only for the purpose of paying counsel’s fees. The claimants then requested that CMS, acting as trustee, return the monies and pay 8% interest.
In judgment, Master Kaye said the details of the claim were ‘substantially inaccurate’ and she found no breach of trust or refusal to transfer monies on the part of CMS.
The court heard that the claimants’ new representatives, London firm Candey, had served an unsealed copy of the claim form at 11.07pm. Master Kaye said she was ‘at a loss to understand on what rational basis’ issuing a claim at this time was intended to help. She added: ‘This high octane approach is entirely inconsistent with the overriding objective and the conduct that the court expects in particular from parties who are well represented by experienced litigators.’
The court heard that property developer Camran Mirza, his wife and son, and related companies had retained CMS until last year to pursue criminal and civil proceedings against another party. The retainer was terminated last year, at which point invoiced costs and disbursements of £1.4m were due to CMS.
The claimants have raised concerns about the level of the costs and further hearings are due later this year to deal with a Solicitors Act assessment.
During the retainer, CMS had proposed a plan for an immediate lump sum payment and then monthly payments to clear the debt.
By July 2023, a critical point had been reached within CMS about its willingness to extend credit to the Mirzas. Following emails from the firm, Mirza paid £129,000 which he said covered counsel’s fees. The claimants submitted that this created a special purpose trust for the money which overrode any general entitlement.
The CMS contact asked for more to be repaid, following a ‘mauling about the level of debt from management’.
In court, the firm said it was clear that the £129,000 was part of the payment of the sums requested, and it was never agreed that this money would be held in trust. CMS had already paid a number of invoices earlier in 2023 prioritising counsels’ fees, so the vast majority the outstanding invoices were its own fees.
Master Kaye said the claimants had made unsupported allegations in correspondence which ‘generated more heat than light’. At one point, the claimants’ new representatives accused a CMS partner of ‘hustling [the claimants] behind my back’ and that incurred costs were ‘fantasy’.
The master said this email was ‘intemperate, unnecessarily combative and neither a reasonable nor proportionate response’. She concluded the claim for return of fees for the criminal proceedings had no real prospect of success and she granted the CMS application for summary judgment. A similar claim for civil fees appeared ‘weak’ but could be determined at trial.
