Andrew McNamara was ordered to pay £90K to Tods Murray after bitter 16 year court battle. A millionaire pensioner goes into a final battle this week in a war that has lasted 16 years to try to overturn a ruling that he must pay his former lawyers almost £90,000.
Andy McNamara will try to persuade three judges at the Court of Session that Lord Woolman was wrong to find against him and for Tods Murray in February.
By appealing, and risking landing the substantial legal costs of his adversaries, the final bill for failure could be well into six figures.
McNamara earned his reputation as a difficult client by going to war with many of the lawyers who represented his contracting firm, Arakin Ltd, and became known as ‘the client from hell’ in the 1990s.
When Tods Murray sued Arakin in 1996 for payment of fees McNamara had demanded should be taxed, he hit back and managed to get more than £100,000 knocked off their time-and-line accounts, embarrassing the firm by obtaining publicity in a national newspaper.
Amongst other cuts he made, the Auditor of the Court of Session reduced by £26,500 a £34,000 photocopying charge, which had been billed at more than £4 a sheet.
McNamara also refused to take Nigel Emslie QC’s advice to accept an offer of £175,000 to settle a dispute with his former accountants, McLachlan and Brown, despite Emslie _ then about to become Dean and now the high court judge Lord Emslie _ threatening to withdraw.
Emslie reluctantly continued to represent Arakin and the action finally settled for £1,040,000, almost six times the first offer.
More recently, McNamara became one of eight litigants branded ‘vexatious’ by the Scottish courts after the Lord Advocate made an application to that effect, largely because of the allegations McNamara made repeatedly about lawyers in open court.
The outstanding litigation between McNamara and Tods Murray should be a matter of simple arithmetic. Tods Murray’s fees for professional services to Arakin in the 1990s, and the sums paid to account have been examined by lawyers, accountants, law accountants and several judges.
On one hand, Arakin can show an overpayment of more than £2,000 on total fees of £321,000, after taxation by the Auditor.
On the other, Tods Murray’s lawyers show a deficit, accepted by Lord Woolman, by taking into account a sum of about £80,000 in outlays allowed by the Court, as well as interest and an uplift (increase) in fees allowed by the auditor, resulting in a figure of almost £409,600.
Lord Woolman therefore ordered Arakin to pay its former lawyers £86,376.
McNamara’s decision to appeal is the result of his conviction that when Tods Murray sued for £204,000 in 1996, and froze £275,000 of Arakin’s money to ensure he could defend it, the firm had no right to do so.
At the appeal, McNamara, who represents Arakin in court, will point to rules that govern a solicitor’s right to sue a client that say no action should precede taxation of disputed accounts.
He will also argue that his firm had paid Tods Murray considerably more than it had been invoiced for when the writ was lodged.
He will present a document provided by Tods Murray dating back to 1997 in which the firm admits it has always known it was not due £204,000, and a notice to admit, in which Tods Murray acknowledges Arakin had paid £70,817.87 more than sums invoiced for.
He will argue that had all these factors been taken into account, the action would have no basis.
Now aged 70 and trying to live quietly in retirement on Arran with his wife, Janette, McNamara freely admits that if he’d known how long the case would run, and the effect it would have on his health and family life, he would have paid up long ago.
But, after Lord Woolman’s opinion, which established that the lack of invoices did not negate Arakin’s obligation to pay fees, he felt unable to walk away without trying to land a decisive blow.
Having talked recently of calling time on the dispute whatever the outcome, he now admits: ‘I’ve been looking at possible routes to the Supreme Court and even to Europe.
‘I’ve got total faith in our case, but I’ve not been given much reason to date to have faith in our justice system.’
His wife has written to the new Lord President, Lord Gill, to say that the current rules covering party litigants like her husband _ who is partially deaf but must address the court without help from his daughter Carol, who assists him _ appear to breach his human rights.
As Lord Justice Clark, Lord Gill chaired a review commission that recommended McKenzie friends be granted rights of audience in the courts. The Scottish parliament passed enabling legislation, but it has not yet been implemented.
Carol McNamara has written to all MSPs to remind them of this point.
At a preliminary hearing last month, three judges, led by Lord Bonomy, agreed that Tods Murray should produce, prior to proof this week, invoices covering the additional outlays allowed by the court, which the law firm says are already lodged in the lengthy process. Mr McNamara maintains those documents have never been entered in the process.
Tods Murray’s chairman, Graham Burnside, is relaxed about the outcome. He said: "At every stage of the process we have trusted to the judgement of the courts and on every occasion to date they have found in our favour."