Frankson (Barrington) v Monica Longmore

• Jurisdiction: Jamaica
• Judge: Downer, J.A. , LANGRIN, J.A: , PANTON, J.A. , DOWNER, J.A
• Judgment Date: 02 December 2000
• Judgment citation (vLex): [2000] 7 JJC 3108
• Court: Court of Appeal (Jamaica)
• Date: 02 December 2000

IN THE COURT OF APPEAL

Michael Hylton, Q.C., and Dave Garcia, instructed by Myers, Fletcher and Gordon for the applicant\appeilant

Donald Scharschmidt, Q.C., John Graham and Christopher Malcolm, instructed by Patterson, Phillipson and Graham for the respondent

BEFORE

THE HON. MR JUSTICE DOWNER, J.A THE HON. MR JUSTICE LANGRIN, J.A THE HON. MR JUSTICE PANTON, J.A

BETWEEN

BARRINGTON FRANKSON

APPLICANT/APPELLANT

AND

MONICA LONGMORE

RESPONDENT

LEGAL PROFESSION - Legal fees outstanding - Claim for - Legal Profession Act, s. 21

ORDER

• 1. The order below setting aside the default judgment is affirmed.

  Additionally

• 2. The default judgment is struck out as being null and void.

• 3. The appellant Frankson must pay the agreed or taxed costs of this appeal.

1 (I)

Downer, J.A.

2 In this application we gave leave to appeal and proceeded to hear the interlocutory appeal. Leave to appeal was refused by Donald McIntosh, J on 19 ^th May 1999, although that order does not appear in the record. It was a proposal from the parties that the application for leave be treated as the hearing of the appeal, but we would have followed such a procedure in any event as it will result in a saving of time and costs. It is an instance of how we have always managed such cases in this Court before the phrase case management became popular.

3 We found Smith v Cosworth Casting Processes Ltd. [1997] 4 All ER 840 cited by Mr Hylton Q.C. helpful especially the guidance given by Lord Woolf MR, at pages 840–841 which reads in part:

• "(1) The court will only refuse leave if satisfied that the applicant has no realistic prospect of succeeding on the appeal. This test is not meant to be any different from that which is sometimes used, which is that the applicant has no arguable case. Why however this court has decided to adopt the former phrase is because the use of the word 'realistic' makes it clear that a fanciful prospect or an unrealistic argument is not sufficient".

• "(4) When leave is granted, the applicant does not need to know more than that he has the leave which he needs and therefore that he is entitled to proceed with the proposed appeal. The intended respondent has no entitlement to receive reasons as to why the application has been granted, in the same way that he does not normally have any right to be heard on the application which is usually made ex parte".

4 The appellant Barrington Frankson is a member of the Bar and the substantive issue in dispute concerns the quantum of his fees for which the respondent Monica Longmore is liable. To understand how the issue arose it is essential to advert to the history of the litigation.

5 (II)

6 The History

7 The respondent Monica Longmore was married to Slydie Basil Joseph Whitter, a man of property. She was awarded one half of the proceeds of the matrimonial home Cromarty. See Whitter v Whitter S.C.C. Appeal 16/88 delivered June 1, 1989. This Court affirmed the order of Panton J. Barrington Frankson, the appellant, was retained by Monica Longmore and his contingency fees were provided for in a contract. The correspondence between the parties is crucial to understanding how the dispute arose, so it is necessary to set out the letters which form the written contract. Here they are.

8 The initial letter at page 43 of the record reads thus:

"12 ^th November,

Mrs. Monica Samuels-Longmore,

Venbingh Hill House, (sic)

Flat E,

1A Vanbingh Hill, (sic)

London S.E. 3 7N. E.,

England.

Dear Madam,

Re:

We acknowledge receipt of your letter dated 13 ^th October, 1986 and pursuant to same we hereby advise that we are prepared to act for you in respect of your property claims as stated in your letter aforesaid.

We note that you have expressed some anxiety in respect of our fees and so we advise herein that we would be prepared to do your matter on a Contingency Basis. Our usual Contingency fee is 33 1/3% of all sums on properties received. However, in your case our fee would be 25%.

We would need your confirmation of this and also the following information:

Volume and Folio Nos. of all properties and their estimated value.

Please let us have your early response.

Yours faithfully,

B.E. FRANKSON & CO".

9 The address Flat E, is of importance so it should be noted. Then Monica Longmore responded to appellant Frankson at page 45 of the record:

"Vanbrugh Hill House

Flat E.

1A Vanbrugh Hill

S.E. 3. 7NE.

6 ^th Dec, 86

B. E. Frankson & Co.

Attorney-at-Law

1A Duke Street

Kingston

Jamaica W.I.

Dear Sir,

I am in receipt of your letter. Contents noted.

I thank you for your consideration on the reduction of your legal fee.

The fee of 25% of all sums on properties received is accepted on condition that no additional money will be paid out by me during and after this case. I need to be assured that this will be so.

In your last paragraph - my previous letter stressed that I have knowledge of my involvement - but, not to the extent of what you require. My letter continued. - That in the event of such information needed you should investigate at the Record Office or whatever body such information can be found.

The only information or document I have in hand are in relation to the £10,000 loan I have previously mentioned.

Please excuse my lack of information. I thought you would have understood after you had my first letters concerning same.

The economic situation at the time and now in Jamaica makes it impossible to give you an estimated value on the properties.

I am afraid any information you may need has to be investigated by you.

I trust this will not deterred you from acting for me.

Sgd: Yours faithfully

M.E. Samuels-Longmore".

10 Barrington Frankson answered as follows at page 49 of the record:

"9 ^th April, 1987

Mrs. Monica Samuels-Longmore

Vanbrugh Hill House,

Flat E,

1A Vanbrugh Hill,

London S.E. 3 7N. E.,

England

Dear Madam,

Re: Self vs Joe Whitter

We acknowledge receipt of yours dated 6 ^th February, 1986, and in answer to your query contained in paragraph 3 thereof we hereby advise that no further fees are payable by you.

The delay in reply to your letter was due to the fact that we are conducting searches both in Montego Bay and at the Titles Office with a view to obtain the Volume and Folio number of the property.

To date hereof we have not obtained such information even though the search is still continuing at the Titles Office.

If you have any other information of the property please send same to us as it may assist us to obtain the necessary information.

Yours faithfully,

B.E. FRANKSON & COMPANY."

11 The response of Mrs Longmore the respondent was as follows:

"c/o 1A Vanbrugh Hill House

Flat A.

London S. E. 3 7N

25 ^th April

Mr B. Frankson

1A Duke Street

Kingston, Jam., W.I.

Dear Sir,

I have not had a response from my letter regarding the above. I am now anxious for things to start moving on track. Please note the property 'Cromarty' Volume No. 1080 Folio 372. Please check if it correct.

I trust you will act accordingly and I await your

reply.

Yours faithfully, M.E. Samuels-Longmore."

12 This is the first occasion that Flat A is used as a postal address. The inference from the correspondence was that the year was 1987. There is a letter from Barrington Frankson to this address dated 20 ^th May 1987. Here it is:

"20 ^th May 87

Mrs. Monica Whitter-Longmore

c/o 1A Vanbrugh Hill

Flat A

London S.E. 3 7NE

England

Dear Madam:

Re: Self vs Joe Whitter

Pursuant to the instructions taken on the telephone on the 20 ^th instant, we now send you Affidavit in Support of your Application for partition of the property at Fairfield, Montego Bay, owned jointly with your husband as Joint Tenants.

Please take the documents to the Jamaica High Commissioner and execute it in the presence of the Legal Attache before returning it to us.

We are forwarding this by Courier Service to prevent any delays, and we trust that you might employ the same means of communication or any other which guarantees a speedy return of the documents.

The places where you and the Legal Attache should sign are indicated in pencil

Yours faithfully.

B. E. FRANKSON & COMPANY."

13 The important point to note is that it is arguable that an expressed term of the contract is that the fees payable were to be 25% of all sums on properties recovered. In the light of that Monica Longmore stated in her affidavit in the proceedings entitled Barrington Earl Frankson v Monica Longmore Suit No C L F 141 of 93 at page 196 of the record:

"12. That during the period June 1989 when the decision of the Court of Appeal was delivered to June 1991 when I terminated Mr. Frankson's retainer, no steps had been taken to tax the legal costs to which I was entitled."

14 So an important issue will be whether in the circumstances of this case she had the right in law to terminate the contract. How did this suit come about? Barrington Frankson claimed he was entitled to 25% of Monica Longmore's share of the proceeds of the property together with rents. He was silent about the taxed costs of the proceeds of the litigation in Whitter v Whitter. He obtained a default judgment against Monica Longmore and she then stated the position thus:

"14. That in the month of October 1996 I understood from my son that a judgment had been entered against me and that subsequently I was advised that Mr Barrington E. Frankson had sold my share of the property at Cromarty to my ex-husband for $7,875,000.00."

15 Monica Longmore sought to set aside the default judgment of 10 ^th June 1994 at page 316 of the record. The hearing was before Marva McIntosh J. whose order at page 328 of the record was as follows:

"BETWEEN BARRINGTON EARL FRANKSON PLAINTIFF

AND MONICA LONGMORE (Formerly MONICA WHITTER)...