EMERY PLANNING PARTNERSHIP V BEVAN [2022] EWHC 494 (QB)

HEADLINE SUMMARY

Any claimant seeking to recover a sum of money must not only (1) establish the defendant's liability, but must also (2) evidence the sum of money claimed (including how the sum has been calculated). Failure to record and disclose evidence of the sum and its calculation can be fatal to recovery.

COMMENTARY

Just because a defendant has not challenged the amount claimed, this is not by default deemed to be an admission. Civil Procedure Rule ("CPR") 16.5 provides that, unless a defendant to a money claim expressly admits an allegation regarding a sum claimed, they are taken to require it to be proved by the claimant.  

This case serves as an important reminder for any contracting party to maintain (and ultimately disclose) accurate and detailed records of who has done what work and when. If court proceedings are required to recover a sum of money, the claimant can then rely on those records to evidence the sums claimed. It is especially important for businesses which charge clients/customers fees based on time spent, often by different members of staff who charge varying hourly rates (such as professional services and consultancy firms), to keep a detailed breakdown of who did what work, when and for how long.

FACTUAL BACKGROUND

The claimant (C) was a town and country planning consultancy. The defendant (D) owned property which he wanted to develop. D engaged Cs to obtain planning consent. When the planning application was rejected by the local Council, D instructed C to challenge the Council’s rejection. D paid some, but not all, of C's invoices. 

C brought a claim for payment of those outstanding invoices (in the sum of c. £50k plus interest). D denied that the monies were owed, arguing (for instance) that C had acted negligently. D itself challenged C’s entitlement to the sums claimed (stating “I consider that no monies are owing”), but did not expressly challenge C's calculation or evidence of the invoice sums.

COURT’S DECISION

D had failed to establish that C had acted negligently. However, C, in charging various rates from £32/hour (for junior support input) up to £170/hour (for the Managing Director’s input) and with special rates being applied from time to time, had not provided any evidence to support its entitlement to the invoice sums. Adequate evidence would have included, for example, a record of who did what work and when, in order to persuade the Court that the invoices were calculated accurately, on the balance of probabilities.

Just because the D in his defence, had not expressly disputed the C’s calculations of the invoice sums, did not mean that D could be taken to have admitted to their accuracy. In making this determination, the court relied in particular on CPR 16.5(4), which says “Where the claim includes a money claim, a Defendant shall be taken to require that any allegation relating to the amount of money claimed be proved unless he expressly admits the allegation”. 

Accordingly, aside from an award of £1,650 for professional costs incurred by the C in instructing Counsel (for which the corresponding Counsel’s fee note was disclosed in evidence), C was not entitled to any of the sums claimed.

KEY PRACTICAL POINTS

Keep records of payments due from customers/clients, including how any invoice sums have been calculated. Where invoices are for professional fees, ensure that the underlying data (ideally entries showing who conducted the work, what the work involved and applying the relevant individual’s hourly rate) supports the sums claimed, and has been disclosed to D and put in evidence.

Prudent record-keeping (and joined-up finance, commercial and legal teams within a business) should make this element of a claim relatively straightforward. Failing this, an otherwise clear-cut claim for unpaid fees could well come unstuck.