“In circumstances where the client was given a hopelessly inaccurate estimate, relied on the estimate by entering into a conditional fee agreement, lost the opportunity of doing something different, was not given proper costs information, was billed a sum several times the amount of the estimate, and where the solicitor failed properly to explain the difference between the estimate and the costs incurred, the amount that the client should reasonably be expected to pay must be a figure close to the estimate upon which she relied. The claim settled before issue and following mediation. The estimate given for that outcome was £5,000 to £20,000 plus “additional costs for mediation”. Taking the top end of that bracket and adding £20,000 for mediation would give £40,000. That is just under half of the figure which Ms Slade referred to as the most she had ever charged for a case which went to trial. It is also not far off the amount that I would expect to have seen estimated and incurred. £40,000 seems to me to be the reasonable sum which the Claimant should be expected to pay.”
“It would be contrary to the public policy that forbids partial or total enforcement of the CFA and severance to permit the solicitors to recover on a quantum meruit basis…. Not only is this clear as a matter of principle based on the scope of the public policy prohibition, it would also be contrary to authority. In Awwad the solicitors contended that they should recover fees on the basis of a quantum meruit assessment in respect of services actually rendered: see 574C. That argument was rejected by Schiemann LJ (with whom both Lord Bingham and May LJ expressly agreed on this point) at 596C-E.”
“…in my judgment the judge was wrong to think that the Client’s informed consent was required in this case because of the wording of Part 46.9(2). Part 46.9(2) is and was irrelevant to the formation of the CFA in this case. This conclusion may seem strange because, in theory, section 74(3) and Part 46.9(2) could have applied to this CFA, had county court proceedings been issued. It might have been said that, since the parties could not have known when they entered into the CFA whether, in future, proceedings would be issued, the conclusion is illogical. That, in my view, is just one unsatisfactory consequence of the fact that the current legislation takes no proper account of the fact that many claims are pursued in online pre-action portals without proceedings being issued. It cannot mean that statutory provisions applicable only to contentious business can be applied to non-contentious business.”
“The best indication of what the Claimant is likely to have done, had an estimate been provided in good time, is what the Claimant did do on 17 April 2020, which was to continue to instruct the Defendant. Nor do I have any idea of what the Claimant’s costs, following a change of solicitor, might have been, so it is not possible to limit the cost recoverable by the Defendant to any such figure.”
“…the electronic signatures on the emails were electronic signatures for the purposes of s.69(2B). The question then arises as to whether the emails were letters for the purposes of s.69(2A)(b)…. the purpose of s.69(2A) is to convey to the client that the bill has been authorised by the solicitor. That can be done by either a signature on the bill or a signature on the communication that accompanies the bill. In my experience solicitors’ bills are sent to clients either by post, usually with an accompanying letter, or by email. Sometimes they are sent by both means. It would, as Mr Griffiths submits, be absurd if a solicitor, sending a bill by email, were required to send, as another attachment, a letter in pdf form which contained no more information than that contained in Mr Weinberg’s email.”
“I fully accept that Costs Judge Rowley in Masters v Charlies Fussell appears to suggest that a solicitor does bear this additional obligation [to his client not only to advise of his rights under the Solicitors Act to ask for an assessment but also to explain what the legal consequences of the service of an interim statute bill would be] but I am not convinced that Mr Justice Fulford’s decision … is sufficient authority to support the proposition. I fully accept the practical difficulties for the client in applying for an assessment of his own solicitor’s costs whilst still instructing him in the underlying litigation as identified in paragraph 19 above. Perhaps this would be a good reason for amending the legislation or for the Solicitors Regulation Authority to amend the Code of Conduct or introduce regulations to like effect. In the absence of such amendment however the situation remains that there is no statutory or regulatory obligation to advise a client what the legal consequences are likely to be for him or her when a solicitor serves an interim statute bill. It is not normal for provisions explaining the legal consequences of contractual terms to be implied into a contract unless there is some additional statutory or regulatory obligation to do so as a result of a perceived need for consumer protection. Whilst there may be such a need here it has not resulted in any changes to the Act or relevant regulatory reform. In the absence of such, I take the view that if there is a clear contractual term reserving the right of a solicitor to deliver interim statute bills then he is entitled to do so, without having to spell out what the legal consequences of such an act would be for the client.”
To avoid the presumption applied by CPR 46.9(3)(c) the solicitor is required to explain to the client that the costs may not be recovered because they were unusual. “Unusual” must therefore be read in the context of a between the parties assessment. That is not to be equated with costs which are merely “unreasonable”. A solicitor is not required to inform the client that particular costs may not be recovered because a court may conclude that they were not reasonably incurred or reasonable in amount.
“The rules governing service are clear that it is the registered office or principal place of business – which appear to be one and the same in this case – which needs to be used as the postal address for service upon a limited company. I have no doubt that errors such as have occurred here are often dealt with on a practical basis by amendment in the manner attempted by the claimant’s solicitors. But there is nothing within the rules to require one party to assist the other and a practical solution does not alter the legal position. It is one which the defendant is entitled to uphold, should it wish to do so.”
“…in my view the Judge was entitled to find that the Respondent had neither terminated the Conditional Fee Agreement nor done what amounted to a repudiatory breach of that agreement. Nor do I agree with the Appellant that the correspondence showed an irretrievable breakdown in the necessary relationship of trust and confidence. In modern times, solicitors have to accept that complaints (whether of poor service or as to fees) go with the territory of professional practice.”
“…the Defendants have already accepted for the purposes of these proceedings that the Claimant’s General Retainer invoices, whether individually or collectively, had the status of a statute bill or bills, and both parties are now in consequence bound by a judgment that can only have been given on that basis. It is, as Mr Slade has said, too late for them to pursue another case now.”