The latest twist in the long running saga of AB v Secretary of State for Justice  EWHC 72 (KB) (and X v The Transcription Agency LLP & Anor  EWHC 1092 (KB)) is that AB/X, who previously benefited from an anonymity order, has been revealed as high profile solicitor advocate Robin Makin, of Liverpool Legal, by the Law Gazette. This followed the anonymity order being lifted by May J in AB/X v Ministry of Justice  EWHC 1920 (KB). Coulson LJ rejected on paper Makin’s application for permission to appeal, concluding: “Like so many previous applications made by [Makin] in the course of these proceedings, this application is totally without merit”.
The underlying background to this apparently endless litigation is not really necessary to recite for current purposes. Sufficient to state that Makin succeeded, in part, in relation to a claim against the MoJ for a claim relating to breaches of the Data Protection Act 1998 and was awarded damages of £2,251 together with a partial costs order in his favour.
After extraordinary delay, he commenced detailed assessment proceedings, serving a Bill of Costs totalling £936,875.78 for work undertaken by Makin acting for himself, initially through a law firm in which he was a Partner and subsequently through a limited company of which he was the sole Director.
During the detailed assessment proceedings, Makin breached numerous directions orders, made numerous unsuccessful applications, unsuccessfully sought to appeal various orders and repeatedly tried to have Costs Judge James recuse herself from the assessment.
Eventually, Costs Judge James undertook a “provisional assessment” of Makin’s Bill and reduced it to £53,775.99. This might be thought to be quite a large reduction. It is.
Costs Judge James’s decisions behind the size of the reductions included:
“Under [Makin’s] fee structure as a Partner in his own law firm back in 2014, his charge-out rate was already £779.48 per hour. The 2014 Guideline Hourly Rate (‘GHR’) was £217.00 per hour. That is just under 28% of the rate claimed by [Makin] in 2014. Had matters continued with his law firm under the same free structure, by 2021 [Makin’s] hourly rate would have been £1,519.00 (see Appendix 1 below for calculation) 7 times the GHR. [Makin’s] current fee structure as sole Director of his limited company is not known. In the Claimant’s Bill, 100% Success Fee was claimed on top of [Makin’s] law firm’s hourly rates, despite (on the facts of this case) being irrecoverable. These, plus other matters including [Makin’s] habitual sending of multiple letters in a single day to the same recipient (on one occasion sending 17 letters to Counsel within a 31-minute period) and charging each one at the full 6-minute unit Grade A rate plus 100% Success Fee, have led to egregious overcharging in a matter where costs were being claimed against the public purse, given that the Defendant is the Ministry of Justice.
The Claimant’s Bill as drawn, at £936,875.78, has been assessed to approximately £55,000.00. The disallowance of Success Fee (£368,929.95) and most of the Bill drafting (£162,010.42, not to double count the success fee) with VAT thereon, account for some £637,128.44 of the reduction and it is this Court’s Judgment that it was both unreasonable and improper to pursue both of these claims. There have been further reductions due to over-recording of time, claiming at 100% costs which were allowed at just 20% and other factors. Given that those reductions amount to nearly a quarter of a million pounds more, it is this Court’s Judgment that the decision to present the Claimant’s Bill in its original state was both unreasonable and improper and was Misconduct worthy of sanction under CPR Part 44.11.
As the Defendant states, and as this Court finds, no reasonable Solicitor and officer of the Court could properly have signed the certificate on the Claimant’s Bill.”
Unsurprisingly, the Court then decided to impose a further reduction under CPR 44.11:
“(1) The court may make an order under this rule where –
(b) it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings or in the assessment proceedings, was unreasonable or improper.
(2) Where paragraph (1) applies, the court may –
(a) disallow all or part of the costs which are being assessed”
Surprisingly, Costs Judge James only reduced the amount by a further 70% to £16,204.50. However, apparently this is all the MoJ sought, although she indicated that, had it been left to her, she would have reduced it further. Given CPR 44.11(2)(a) clearly gives the court the power to disallow costs in their entirety if there has been unreasonable or improper conduct, was this not one of the clearest cases where the full sanction should have been imposed? If not here, when?
At the same time as Makin was seeking to appeal all of the above (and much else besides), he launched entirely separate proceedings against the Transcription Agency and Costs Judge James personally for alleged breaches of the subject access provisions of the Data Protection Act 2018 and the United Kingdom General Data Protection Regulation. This failed. Oh, and he also made a complaint about Costs Judge James to the Judicial Conduct Investigations Office, which was dismissed.
The application for permission to appeal against the various decisions made by Costs Judge James was dismissed as being “totally without merit” (a phrase with which Makin must now be very familiar given the numerous other applications/appeals which were dismissed on the same basis).
The MoJ subsequently applied to have the anonymity order lifted.
One of the grounds advanced on behalf of Makin for resisting the lifting of the Order was:
“Mr Boyle’s further argument concerned health matters. For these purposes, when considering misconduct, he distinguished between professional conduct and personal behaviour. One of the matters of misconduct raised and referred to by Costs Judge James in her judgment concerned the Claimant’s behaviour at a hearing on 3 May 2019, when the Claimant is said to have sworn and left the hearing, causing it to have to be adjourned. Mr Boyle submitted that the Claimant’s behaviour on this occasion relates directly to his health conditions. If his identity in connection with this behaviour was made public, then he would be obliged to explain the behaviour by reference to those health conditions, and that would cause him immense professional embarrassment as they include a matter that is habitually stigmatised. The publicity which would go with that condition being made public would, in the Claimant’s view, not only interfere with his professional relationships with colleagues but would also by association taint the causes which he has championed and the clients whom he continues to represent.”
The MoJ’s response to this was:
“Mr Joseph pointed out that the SRA website requires certain matters to be self-reported. These would include the misconduct judgment of Costs Judge James, the dismissal by Murray J of applications for permission to appeal that judgment and the ECRO made by Eyre J. Moreover, if the Claimant has a health condition affecting his behaviour when acting as a higher rights advocate before the court (the Claimant was conducting his case himself at the hearing on 3 May 2019 referred to above) then that is another matter which he is required to report to his regulator. In Mr Joseph’s words, if health matters caused the Claimant to have acted as he did on 3 May 2019, then he should have been reporting it to the SRA on 4 May.”
In deciding to lift the order, May J commented:
“When considering the balance between open justice and the public interest in reporting on one side and any Article 8 or other private rights of the Claimant or his family on the other, the public interest in learning of misconduct on the part of a prominent solicitor, officer of the court and higher rights advocate must weigh very heavily. Even leaving aside (1) above (I consider the matter of behaviour further below) [Costs Judge James’s] findings of misconduct, all of which were upheld by Murray J in refusing permission to appeal, are very serious breaches of the high standard of professional behaviour which the public is entitled to expect. As Mr Moloney pointed out, solicitors advise and deal with members of the public concerning important, often life-changing matters. Any investigation by the SRA/SDT must be at least significantly hampered by continued anonymity.”
This story will presumably now shift to the SRA/SDT. Based on the (undisturbed) misconduct findings of Costs Judge James, it is difficult to envisage anything other than the most serious sanction being imposed.
Of the numerous errors of judgment made by Makin in the proceedings, two stand out:
- The decision to conduct the proceedings (at least so far as the costs proceedings are concerned) himself. Costs Judge James had invited Makin verbally and in writing to consider instructing somebody else given his self-declared difficulties dealing with the matter. He refused this invitation as, difficult as he claimed to find it all, he could not surrender any of it to a third party because it was too private. As the old saying goes: “the man who is his own lawyer has a fool for his client”. This applies doubly for lawyers acting for themselves.
- Submitting a Bill for an amount for which “no reasonable Solicitor and officer of the Court could properly have signed the certificate on the Claimant’s Bill”. This may be more serious than simply an SRA/SDT disciplinary matter.