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Part 36 Offers Cannot Displace The Solicitors Act One-Fifth Costs Rule

The Senior Courts Costs Office’s decision in Griffin v Kleyman & Co Solicitors Ltd [2026] EWHC 257 (SCCO) clarifies that a settlement offer which attempts to reverse the statutory one-fifth rule through CPR Part 36 mechanics will not constitute a “special circumstance” under section 70(10) of the Solicitors Act 1974.

Background

The case concerned an assessment, under section 70 of the Solicitors Act 1974, of bills totalling £181,954.64 (including VAT and disbursements) rendered by the defendant firm, Kleyman & Co Solicitors Ltd, to its former client, Clare Griffin [§1]. The bills related to work undertaken between 30 March 2020 and 28 May 2021 [§1]. The assessment was ordered by consent on 13 May 2022 following a Part 8 application made by Ms Griffin on 30 July 2021 [§1]. That Part 8 application had initially been opposed, with a one-day hearing listed on 18 May 2022 to determine whether an order should be made, but that hearing was rendered unnecessary by the consent order agreed five days earlier [§2].

The consent order incorporated, at paragraph 2, the standard provision taken from Precedent L to Practice Direction 47 requiring the court to assess both the bills and the costs of the Part 8 proceedings, reserving the award and quantification of costs to the conclusion of the assessment process [§3–4]. The detailed assessment was a lengthy process. The claimant’s case on estimates was heard as a preliminary issue but did not succeed; Costs Judge Leonard found that whilst the defendant had failed to advise adequately on estimates, the claimant’s own refusal to conduct herself in a reasonable, realistic and cost-effective fashion made it impossible to set a limit upon the defendant’s recoverable costs [§12]. A final figure for the assessed bill was not established until 7 July 2025, with the process hampered by errors and misunderstandings on both sides [§13].

The bills, originally totalling £181,954.64, were assessed at £154,039.94, a reduction of £27,914.70 (15.34%) [§5]. As Ms Griffin had already paid £174,309.82, a refund of £20,269.88 was due to her [§5]. Importantly, it was established during the assessment that the defendant had incorrectly included in its bills disbursements to the value of £4,334.10, meaning the bills should have totalled £177,620.54 rather than £181,954.64 [§24]. Even without any other deduction, the defendant could never have claimed more than £3,310.72 as an outstanding balance, and the sum of £10,452.82 it had asserted as owing was substantially overstated [§24].

Costs Issues Before the Court

The primary issue was the award of costs for the solicitor-client assessment. The statutory framework in section 70(9) of the Solicitors Act 1974 prescribes that, unless the order for assessment provides otherwise, costs follow the “event” based on a one-fifth rule: if the bill is reduced by one-fifth or more, the solicitor pays the costs; if the reduction is less than one-fifth, the client pays [§7]. As the reduction was 15.34%, section 70(9) dictated that the defendant should receive its assessment costs unless special circumstances under section 70(10) justified a different order [§8].

This presumption could be displaced by section 70(10), which empowers the costs officer to certify special circumstances and the court to make such order as to costs as it sees fit [§7]. The claimant argued that a settlement offer she made constituted such a special circumstance. A secondary issue was the award of costs for the separate Part 8 application, the costs of which were reserved by the consent order and fell to be determined under the court’s general costs discretion in CPR 44.2 [§30].

Settlement Offers

Both parties accepted, for the purposes of this decision, that CPR Part 36 has no application to an assessment under section 70 of the 1974 Act. Costs Judge Leonard had previously given his reasons for reaching that conclusion in Zuhri v Vardags Ltd [2023] EWHC 3050 (SCCO), and neither party wished to reopen that point [§18]. The key part of the rationale behind that earlier decision was that the costs provisions of CPR Part 36 (as secondary legislation) are inconsistent with the costs provisions of subsections (9) and (10) of section 70 (as primary legislation) [§19]. There was, however, no obstacle to an offer not carrying Part 36 consequences being accepted so as to create a binding contract of settlement [§20].

On 23 May 2022, ten days after the assessment order, the claimant sent an offer headed “Part 36 Offer To Settle” proposing that the defendant’s bills be reduced by £28,000 in full and final settlement [§22]. The offer expressly stated it was intended to have Part 36 consequences and that, if accepted, the defendant would be liable for the claimant’s costs under CPR 36.13 [§22]. After deducting the £10,452.82 the defendant claimed as outstanding, the payment to the claimant would have been £17,547.18 [§22].

The defendant responded on 6 June 2022, questioning why the offer was “plus costs” given that a £28,000 reduction was less than the 20% needed to trigger the one-fifth rule in the claimant’s favour [§23]. The defendant offered instead to settle on a “drop hands” basis with no order as to costs, the outstanding balance of £10,452.82 to be written off [§23].

The Court’s Decision on Special Circumstances

Costs Judge Leonard found that the claimant’s 23 May 2022 offer was not sufficient to establish special circumstances displacing the one-fifth rule [§48]. The court accepted that, on the authority of Angel Airlines SA v Dean & Dean [2008] EWHC 1513 (QB), a clear without prejudice offer made in proper time and in proper form can constitute a special circumstance capable of reversing the statutory presumption in section 70(9) [§15, §32]. The judge accepted that the general principle from Wills v Crown Estate Commissioners [2003] 4 Costs LR 581 — that paying parties should make realistic settlement offers at the beginning of assessment proceedings and not at the end — was of general application to solicitor-client assessments as well as inter-party assessments, as recognised in Angel Airlines [§16–17].

However, the judge found the claimant’s offer was not in “proper form” [§35]. The offer provided for a reduction of less than one-fifth of the bills, yet required that, on acceptance, the defendant would lose its section 70(9) right to recover its assessment costs and would instead pay the claimant’s costs by reference to CPR 36.13(1) [§36]. In short, the offer represented a misconceived attempt to reverse the effect of section 70(9) through the operation of CPR Part 36, which was not possible [§37]. The judge found it unsurprising that the defendant was unwilling to accept it, and regarded the defendant’s “drop hands” offer as a more sensible proposition [§38].

The court also rejected the argument that accepting the offer would have left the defendant in a better position. While the billing refund under the offer (£17,547.18) was £2,722.70 less than the eventual refund of £20,269.88, acceptance would have required the defendant to pay the claimant’s costs — estimated at least £10,400 based on document time alone — and to forfeit its right to its own costs under the one-fifth rule [§27, §42–43]. The judge observed that the great majority of solicitors’ bills are reduced at least to some extent on a section 70 assessment, particularly in lengthy retainers involving hard-fought contentious matters, and that a solicitor whose costs are reduced by less than one-fifth may nonetheless regard the outcome as a success if it retains the right to assessment costs [§40]. The preservation of those rights, even subject to an element of uncertainty, outweighed the reduction of the billing refund by £2,722.70, or was at least sufficient to prevent the claimant from relying on the offer as establishing special circumstances [§47].

The judge added that even had he reached a different conclusion on special circumstances, it was unlikely that the claimant could have been awarded the costs of the estimates issue. The claimant’s case on estimates had been overstated and had involved unfounded and unfair allegations of impropriety against the defendant’s principal, Ms Kleyman, which the judge described as “regrettable”. Even after the estimates issue had been determined, the unfounded attacks on Ms Kleyman remained a feature of the proceedings [§49–50].

Conduct and the Award of Assessment Costs

The court awarded the defendant its costs of the assessment under the one-fifth rule, but reduced those costs to 80% to reflect the defendant’s conduct [§57].

The principal factor was the defendant’s negligent overbilling by £4,334.10, which should never have occurred [§53]. The claimant also identified a wider pattern of poor financial management: the defendant failed to produce a cash account as required by the assessment order in May 2022, failed again when ordered on 11 December 2024, and did not finalise a cash account until June 2025, even with some assistance from the claimant’s costs draftsman [§54]. The court found this poor record-keeping had impeded the clarification and resolution of the assessment, and that it should never have been necessary for the claimant to engage in a detailed assessment to discover that she had been overbilled [§55–56].

The Part 8 Costs

The Part 8 application and the assessment costs are distinct: section 70(9) governs only the costs of assessment, while the Part 8 costs fall to be determined under CPR 44.2 [§30]. However, there was logic in the parties’ mutual assumption that the Part 8 costs would follow the assessment costs, since the Part 8 claim was part and parcel of the claimant’s attempt to reduce the defendant’s bills [§31, §58].

The claimant argued she should receive the Part 8 costs on the basis that the defendant had initially opposed her application and only conceded shortly before the hearing. The court did not characterise the consent order as a capitulation, finding instead that it was a sensible compromise to have all disputes resolved within the assessment process [§59–60]. Nevertheless, the defendant could have recognised this at the outset rather than waiting until shortly before the hearing. In the exercise of discretion, the court ordered the claimant to pay 50% of the defendant’s Part 8 costs [§61].

Key Takeaway

This decision reinforces that settlement offers in Solicitors Act assessments must be crafted within the statutory framework, not around it. An offer which attempts to import CPR Part 36 consequences into a section 70 assessment — and which seeks to reverse the one-fifth rule through the backdoor — will fail the “proper form” test from Angel Airlines and will not constitute a special circumstance under section 70(10). Practitioners making settlement offers in solicitor-client assessments should ensure they do not attempt to reverse statutory costs entitlements, should make offers early and in realistic terms, and should be aware that a “drop hands” offer may carry more weight than an ambitious offer encumbered by misconceived Part 36 conditions. Separately, solicitors face tangible costs penalties for overbilling and poor record-keeping even where they prevail on the one-fifth rule.

CPR 26.9(10)(e) | Wrongful Interference With Goods Against Police Mandates Multi-Track Allocation | Part 36 Acceptance Does Not Oust Fixed Costs

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Background

The case concerned a claim brought by the Executors of the Estate of Kenneth Collins against the Chief Constable of Thames Valley Police. In July 2015, police officers arrested Mr Collins and, during a search of his property, seized thirteen guns and ammunition [§2]. He was later convicted of related offences in February 2017, and a destruction order was made for some of the items [§3]. Following revocation of his shotgun certificate, requests for the return of the remaining guns to his partner were refused. On 6 November 2018, the police informed Mr Collins that the guns had been destroyed [§4].

Mr Collins instructed Brabners LLP to pursue a claim in negligence and/or wrongful interference with goods, with losses quantified at approximately £228,000. A Letter of Claim was sent on 12 July 2019 [§5]. The Defendant’s response on 28 October 2020 indicated it could identify no defence to liability in principle [§5]. Mr Collins died on 15 April 2022, and the claim was continued by his estate [§6]. Both parties obtained expert valuation evidence.

On 11 January 2023, the Claimant made a Part 36 offer of £50,000 [§7]. On 17 January 2023, the Defendant made a Part 36 offer of £32,500 using Form N242A, which included a term that acceptance within 21 days would render the Defendant liable for the Claimant’s costs in accordance with CPR 36.13 [§8]. The Claimant accepted this offer on 1 February 2023, within the relevant period.

Costs were not agreed. On 31 December 2024, the Claimant issued Part 8 costs-only proceedings [§9]. The Defendant contested the making of an order for assessed costs, leading to the hearing before Costs Judge Whalan.

Costs Issues Before the Court

The sole issue for determination was whether the Claimant was entitled to an order for costs to be assessed on the standard basis, or whether their recovery was limited to fixed recoverable costs under the extended regime introduced by the Civil Procedure (Amendment No. 2) Rules 2023. This turned on three alternative questions [§10]:

1. Whether FRCs were excluded because the substantive claim fell within the scope of CPR 26.9(10)(e), requiring mandatory allocation to the multi-track.
2. Whether FRCs did not apply because the claim was a non-personal injury claim that settled without proceedings being issued, per the transitional provisions of the 2023 Rules.
3. Whether FRCs were ousted by the express terms of the Part 36 settlement agreed in February 2023.

The Parties’ Positions

The Claimant’s Position: Counsel, Mr Waszak, submitted that FRCs did not apply for three reasons. First, the claim fell within CPR 26.9(10)(e)(i) as a “claim against the police which includes a claim for… an intentional or reckless tort” [§13]. The Letter of Claim referenced “wrongful interference with goods”, which encompassed the intentional torts of conversion and trespass to chattels [§14-16]. The destruction of the guns was, by nature, a deliberate act [§17]. This would have mandated multi-track allocation, taking the claim outside the FRC regimes.

Second, on the transitional provisions, Mr Waszak argued that FRCs only applied to non-personal injury claims where substantive “proceedings are issued” on or after 1 October 2023 [§21]. The phrase “proceedings” referred to the substantive claim, not subsequent Part 8 costs proceedings. As the substantive claim settled pre-issue, it was not caught. He cited a Q&A supplement to the White Book in support [§24] and invoked the presumption against retrospective legislation, arguing it would be “manifestly unjust” and “absurd” to apply FRCs retrospectively to a claim conducted under a different costs regime [§26].

Third, he argued that the Part 36 agreement itself expressly ousted FRCs. The Defendant’s offer stated costs would be payable “in accordance with rule 36.13”, which provides for assessment on the standard basis. This constituted an express agreement that costs would not be fixed, per CPR 45.1(3) [§35].

The Defendant’s Position: Counsel, Mr Hogan, submitted that FRCs applied. On the first issue, he contended the claim was, in legal and factual reality, solely in negligence. The Letter of Claim’s language was “redolent of negligence” and contained no elaboration on intentional torts [§18]. The Defendant’s admission of liability was based on negligence.

On the transitional provisions, Mr Hogan argued that the word “claim” in the rules included Part 8 costs-only proceedings. A “claim” remained in being until all elements, including costs, were concluded [§28]. Therefore, issuing costs proceedings after 1 October 2023 triggered the FRC regime for all costs incurred. He cited the county court decisions in Asmat Bi v Tesco Underwriting Ltd [§32] and Bek v Simsek [§33] which reached this conclusion. He also noted that procedural changes are not subject to the rule against retrospectivity [§30].

On the third issue, he submitted that acceptance of a Part 36 offer did not amount to “contracting out”. It merely conferred an entitlement to costs determined by the rules as a whole, which included the potential for FRCs [§36]. Part 36 is a procedural code, not a contractual agreement to oust other rules.

The Court’s Decision

Costs Judge Whalan held that the Claimant was entitled to an order for costs to be assessed on the standard basis.

On Issue 1 (CPR 26.9(10)(e)): The court found that the substantive claim did fall within CPR 26.9(10)(e)(i). The provision required only that the claim “included” a claim for an intentional tort — the provisions were “not exclusive but inclusive” [§19]. The reference to “wrongful interference with goods” in the Letter of Claim “sensibly and inevitably” suggested an alternative claim in conversion and/or trespass to chattels. The destruction of the firearms was “self-evidently the consequence of an intentional act” on the part of the Defendant [§19]. Therefore, the claim would have been mandatorily allocated to the multi-track, placing it outside the scope of FRCs under CPR 45. This finding was determinative in the Claimant’s favour.

On Issue 2 (Transitional Provisions): The court concluded that, had Issue 1 been decided differently, FRCs would have applied by virtue of the transitional provisions [§34]. It rejected the Claimant’s narrow interpretation. The court held that “claim” in the 2023 Rules included Part 8 costs-only proceedings issued to obtain a costs order. There was a single, continuing claim until all elements were concluded. No material distinction should be drawn between the substantive claim and costs-only proceedings. The changes were procedural and not subject to the rule against retrospectivity. The court found the scheme created a “bright line” demarcation and noted the Claimant had eight months to issue costs proceedings before the 1 October 2023 commencement date. It found the county court decisions of Asmat Bi and Bek “reassuring”, though not binding. The court expressly declined to place any reliance on the CPRC Minutes of 3 November 2023 [§34].

On Issue 3 (Contracting Out via Part 36): The court rejected the argument that the Part 36 agreement ousted FRCs [§37]. Offer and acceptance under Part 36 invoked a procedural, not a contractual, process. The entitlement to costs under CPR 36.13 was expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules”. Therefore, it could not be construed as an agreement that costs would not be fixed if the Rules otherwise provided for FRCs.

Implications for Costs Practice

This decision has two significant implications for practitioners.

First, it establishes that claims against the police for wrongful interference with goods — even where framed primarily in negligence — will include an element of intentional tort (conversion or trespass to chattels) sufficient to engage CPR 26.9(10)(e)(i). Such claims must be allocated to the multi-track and are therefore excluded from the FRC regime regardless of value. Practitioners handling claims against the police should carefully consider whether any intentional tort element is present, as this provides an escape route from fixed costs.

Second, the court’s analysis of the transitional provisions is strictly obiter — the claim having already been excluded from FRCs on the intentional tort ground — but it represents the first SCCO-level endorsement of the approach taken by the county courts in Asmat Bi and Bek v Simsek, and is therefore of considerable practical significance. Notably, the court reached this conclusion on the proper construction of section 2(1) of the Civil Procedure (Amendment No. 2) Rules 2023 without placing any reliance on the CPRC Minutes of 3 November 2023, which practitioners had previously been citing as the primary authority for the position that Part 8 costs-only proceedings constitute “proceedings” for the purposes of those transitional provisions. The fact that the SCCO arrived at the same result through independent statutory analysis makes the reasoning considerably more robust. For any legacy non-PI claims that settled pre-issue before October 2023 but where Part 8 costs-only proceedings were issued after that date, this confirms that FRCs will apply. Practitioners with such cases still in the pipeline should take note.

Third, the court’s finding that acceptance of a Part 36 offer does not constitute contracting out of FRCs under CPR 45.1(3) is also technically obiter, but has implications well beyond police claims. The judgment confirms that Part 36 is a self-contained procedural code, and that the entitlement to costs under CPR 36.13 is expressly subject to the proviso “Except where the recoverable costs are fixed by these Rules.” Practitioners relying on Part 36 settlements to escape FRCs will need to seek express contractual language — a standard Part 36 acceptance, on its own, will not suffice.

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Does Removal As Trustee Always Mean Loss Of Indemnity?

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The High Court’s decision in Smith v Campbell [2026] EWHC 144 (Ch) confirms that the test for a trustee’s indemnity following removal is whether they defended in the interests of the trust and acted reasonably in all the circumstances — not whether they were ultimately successful in resisting removal.

Background

The claimants, Nathan James Smith, Leah-Jane Styring, and Suzanne April Smith, beneficiaries of the Graham Cheslyn-Curtis Will Trust, brought proceedings against the four trustees. The claim was for the removal and replacement of all trustees; as recorded in this costs judgment, it involved “numerous allegations of breach of trust and misconduct,” the majority of which were ultimately dismissed. The trial on the merits resulted in a written judgment on 17 November 2025 (Smith v Campbell [2025] EWHC 3011 (Ch)) (the “Main Judgment”). In that judgment, the court ordered the removal of two trustees, Ian Patrick Campbell (‘Paddy’) and Malcolm Ronald Taylor, but declined to remove the remaining two, Sarah Cheslyn-Curtis and Maldwyn Stephen Henry Worsley-Tonks MBE. Following that decision, the parties agreed to the appointment of Freeths Trustees Limited as a replacement professional trustee. The only outstanding matter was the determination of costs, which was the subject of a hearing on 14 January 2026.

Costs Issues Before the Court

The court was required to determine two distinct but related costs issues. The first was the incidence of costs as between the claimant beneficiaries and the defendant trustees, to be decided under the court’s general discretion pursuant to section 51 of the Senior Courts Act 1981 and CPR rule 44.2. The second issue was whether the trustees should be deprived of their right to an indemnity from the trust fund for their costs of the proceedings, which is governed by section 31(1) of the Trustee Act 2000, implemented in the litigation costs context by CPR rule 46.3 and Practice Direction 46.

The Parties’ Positions

The claimants, represented by Paul Burton, argued they were the substantially successful party as they had achieved “regime change” by securing the removal of two trustees and the appointment of an independent professional trustee. They submitted the trustees had unreasonably refused to mediate and had rejected offers of settlement made shortly before trial which reflected the ultimate outcome. The claimants sought an order that the trustees pay their costs on the standard basis and that the trustees be deprived of their indemnity from the trust fund, contending it was unreasonable for Paddy and Malcolm to have “fully and determinedly defended their removal.”

The trustees, represented by Alexander Learmonth KC, submitted they were the successful parties in substance. They emphasised that the claimants had failed to remove two trustees and had advanced numerous allegations of misconduct which were almost entirely dismissed. They argued the claimants’ true objective was commercial, relating to Paddy’s directorship of the underlying company, Millpledge, and that the claimants had acted unreasonably by issuing proceedings without any pre-action correspondence and by rejecting reasonable settlement offers, including an early proposal for Paddy to retire as trustee. The trustees sought an order that the claimants pay their costs, or circa 90% of them, and that they retain their full right of indemnity from the trust.

The Court’s Decision

On the incidence of costs between the parties, the court held that the claimants were the partially successful party, having achieved the removal of two of the four trustees. The starting point pursuant to CPR rule 44.2(2)(a) was therefore that the trustees should pay the claimants’ costs. However, the court exercised its discretion to depart from this rule. The court found the claimants’ conduct was unreasonable in several key respects: they issued proceedings without any pre-action correspondence or compliance with the Practice Direction – Pre-Action Conduct; they made and pursued “myriad allegations of misconduct” against the trustees which were unjustified and exaggerated, and which formed the bulk of the litigation costs; and they were primarily responsible for the failure to engage in early alternative dispute resolution. On this last point, the court found the claimants had not accepted early offers of mediation and had rejected outright the trustees’ December 2024 proposal that Paddy retire as a trustee. Although shortly before trial the parties exchanged without prejudice save as to costs offers with substantive terms closely reflecting the eventual outcome, the principal remaining dispute was costs, and time ran out before a resolution could be reached. In all the circumstances, the court ordered that there be no order as to costs between the parties.

On the trustees’ right of indemnity, the court held that their costs were not improperly incurred and they were entitled to be indemnified from the trust fund. The court found it was proper and reasonable for the trustees to defend themselves against the numerous allegations of breach of trust and misconduct, the majority of which were dismissed. Furthermore, the trustees had made a good faith and reasonable attempt to address the legitimate relationship issues by making an open offer in December 2024 for Paddy to retire or for a demerger of the trust assets involving an independent trustee. The claimants’ rejection of that proposal, on the basis that Paddy would remain a company director, was not a reasonable basis on which to refuse an offer that sought to address their concerns about trust administration. The trustees had not acted perfectly—for example, Malcolm’s position was not addressed in their open proposal—but their conduct in defending the allegations and making a constructive settlement proposal was not such as to justify depriving them of their indemnity. The court also noted, obiter, that it was doubtful whether it had jurisdiction to order a partial deprivation of indemnity, but declined to decide the point and stated it would not have exercised any such jurisdiction on the facts of this case.

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Inadequate Estimate Fails To Establish Special Circumstances Under s70(3) Where Client Would Have Made The Same Choices

New Costs Blog

The Senior Courts Costs Office’s decision in Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO) confirms that deviation from a preliminary estimate will not establish special circumstances where the client’s conduct demonstrates they would have made the same choices regardless.

Background

Mr Alan Biggar made an application under section 70 of the Solicitors Act 1974 for the detailed assessment of 19 bills of costs delivered to him by his former solicitors, Howard Kennedy LLP [§1]. The bills, rendered between 29 June 2020 and 28 July 2023, totalled £195,954.60 [§1]. The Defendant’s records indicated that the first three bills, up to 26 August 2020, had been paid in full [§1]. The remaining bills were wholly or partly unpaid.

The Defendant had acted for the Claimant between June 2020 and June 2023 in connection with serious charges of fraudulent trading brought by the Financial Conduct Authority (FCA) relating to Worthington Group plc, a company listed on the London Stock Exchange [§5–6]. A restraint order, made on 13 April 2018 by HHJ Taylor at Southwark Crown Court, prevented the Claimant and his wife from dealing with their assets and did not contain an exception for legal fees [§10]. The retainer was governed by an engagement letter dated 12 June 2020 and the firm’s standard terms of business [§7]. The letter included a preliminary estimate of £10,000–£15,000 plus VAT for initial work (reviewing papers, liaising with the FCA, and providing initial advice), stating that further estimates would be provided as the matter progressed [§8–9].

The Claimant faced significant difficulties in funding his defence. An initial third-party funder, Mr Stephen Dando, withdrew in May 2021 [§19]. The Claimant’s estranged wife contributed £10,000 in October 2021 but was unable to provide further funding [§20]. Subsequent promises of funding from Anglo Swiss Advisory Ltd, outlined in a letter dated 14 October 2022, failed to materialise [§24–25]. That letter contemplated funding of at least €1,320,000 [§24]. Despite mounting unpaid fees, the Defendant continued to act. In July 2023, the parties entered a written agreement in which the Claimant acknowledged a debt of £101,137.42 and agreed to a repayment plan [§33]. The plan was not honoured [§34].

On 22 May 2024, the Defendant issued County Court proceedings for unpaid fees totalling £102,109.40 plus interest [§35]. The Claimant filed a defence challenging the reasonableness of the fees and sought an order for detailed assessment [§35]. Shortly thereafter, on 9 January 2025, he issued a Part 8 application in the Senior Courts Costs Office [§36]. On 15 January 2025, HHJ Evans-Gordon stayed the County Court proceedings pending the conclusion of the assessment claim [§36].

Costs Issues Before the Court

The court was required to determine two principal issues [§4]. First, whether the Defendant’s first three bills had been “paid” for the purposes of section 70 of the Solicitors Act 1974. If they were paid more than 12 months before the application, the court had no jurisdiction to order their assessment under section 70(4) [§3]. Second, whether “special circumstances” existed to justify an order for the assessment of the remaining unpaid bills. As the application was made more than 12 months after the delivery of those bills, the Claimant needed to demonstrate special circumstances to overcome the statutory restriction in section 70(3) [§3].

The Parties’ Positions

The Claimant’s Position: The Claimant argued that special circumstances existed. He contended that the existence of the restraint order was itself a special circumstance sufficient to justify assessment [§48]. He relied heavily on the Defendant’s initial cost estimate of £10,000–£15,000, arguing that the eventual fees of nearly £200,000 represented such a significant deviation as to call for an explanation [§51]. He stated he had relied on this estimate and was vulnerable when instructing the Defendant [§37, §51]. He also cited his involvement in a lengthy criminal trial as a factor explaining his delay in challenging the bills [§52]. Regarding payment, he submitted that, applying Menzies v Oakwood [2024] UKSC 34, he had not agreed to the allocation of specific payments to specific bills, and therefore the first three bills could not be considered “paid” [§53].

The Defendant’s Position: The Defendant submitted that the application was a tactical manoeuvre to delay payment [§54]. It argued that the first three bills had been paid by agreement, which could be inferred from the Claimant’s conduct in making payments against the outstanding balance over a prolonged period [§55–58]. On special circumstances, the Defendant contended the preliminary estimate was just that — preliminary — and was quickly superseded by events [§61]. It highlighted that the Claimant had later sought to raise over €1.3 million in funding, demonstrating his understanding of the true potential cost [§61]. The Defendant pointed out that the Claimant had repeatedly affirmed the debt, including in the July 2023 agreement, and had never queried the bills until faced with enforcement [§59–60]. It argued there was nothing out of the ordinary in a complex fraud case with a restraint order [§62].

The Court’s Decision

On Payment of Bills: Costs Judge Leonard found that the first three bills had been paid [§67]. Applying the principles from Menzies v Oakwood, the judge held that payment requires an agreement to the sum taken, which can be inferred from conduct [§63]. The Claimant had received the bills and subsequently arranged for payments to be made against the outstanding balance. This constituted an agreement to pay [§67]. The judge rejected the argument that agreement required specificity in allocating payments to particular bills, finding that standard to be artificial and impracticable [§66]. Consequently, the court had no jurisdiction to order assessment of those bills under section 70(4).

On Special Circumstances: The court dismissed the application, finding no special circumstances [§89].

The judge rejected the argument based on the initial estimate [§69]. The estimate was expressly preliminary and related only to initial work: reviewing papers, contacting the FCA and previous solicitors, and providing advice [§69]. The Claimant’s comparison of this figure to the total three-year costs was “artificial” [§69]. The judge noted that by October 2022, the Claimant was seeking to raise over €1.3 million, showing his understanding of the potential scale of costs [§77]. Furthermore, the evidence demonstrated that even with full knowledge of accruing costs, the Claimant wished to continue instructing the Defendant rather than seek cheaper alternatives. In March 2023, having already received bills exceeding £170,000, he emailed: “I’d rather of course stay where we are. I value your guidance and as we’ve said before when liberty is at stake its not a time to go for the cheapest” [§29, §73]. Accordingly, any failure to provide updated estimates had not caused the Claimant to lose an opportunity to make different choices [§76].

The court also rejected the other proposed special circumstances. The restraint order was not unusual for a substantial fraud prosecution [§80, §83]. The Defendant’s subsequent enforcement action was a reasonable consequence of unpaid fees and broken promises [§84]. The Claimant’s ongoing criminal trial did not adequately explain a 17-month delay in applying for assessment, especially as the trial did not begin until September 2024 — well after most of the delay had elapsed [§81]. The judge also found that the Defendant had complied with its retainer terms regarding notification of rate increases by detailing them on each invoice [§86]. In any event, such a discrete point would not justify a full assessment [§88].

In concluding, Costs Judge Leonard accepted the Defendant’s submissions as to the merits and motivation behind the application [§68]. The Claimant had been advised from the outset of his right to challenge bills and the applicable time limits, was reminded of this with every bill, and never expressed dissatisfaction until faced with enforcement [§79]. The Part 8 application was dismissed [§89].

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Unless Order Stands | Defendants Fail To Evidence Impecuniosity After Non-Payment Of Interim Costs

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The Senior Courts Costs Office’s decision in Fieldfisher LLP v Scherbakova & Anor [2026] EWHC 104 (SCCO) confirms that parties seeking relief from unless orders on grounds of impecuniosity must adduce proper evidence, not rely on inference.

Background

The Claimant, Fieldfisher LLP, provided legal services to the Defendants, Olga Scherbakova and Alexander Scherbakov, in relation to a contentious probate claim concerning their late father’s estate, under engagement letters dated December 2022 and January 2023 [§3, §5]. The Defendants ceased instruction in August 2023 [§7]. During the retainer, the Claimant issued invoices totalling £1,944,078.48, of which a substantial balance remained unpaid [§8].

The Claimant commenced proceedings to recover the unpaid fees as a debt [§9]. In their Defences, the Defendants admitted liability to pay costs subject to reasonableness [§20–21]. On 2 December 2024, HHJ Pearce entered judgment for the Claimant for an amount to be decided and transferred the matter to the Senior Courts Costs Office for “damages to be assessed” [§48]. A directions order on 29 April 2025 set a timetable for the assessment of the disputed fees, adopting a procedure akin to CPR 46.10 by analogy, though the proceedings were not brought under the Solicitors Act 1974 [§10–12, §24].

The Claimant’s application for an interim payment was heard on 7 July 2025 [§25]. The Defendants opposed it, alleging impecuniosity, but the court was not persuaded by the evidence provided [§28–30]. Costs Judge Nagalingam ordered the Defendants to pay an interim payment on account of £741,122.85 by 5 August 2025, with summarily assessed costs of £20,000 [§33]. The judge regarded this sum—approximately 50% of the outstanding balance—as modest [§30–32].

The Defendants did not pay, apply to vary, or appeal this order [§34]. On 12 August 2025, the Claimant applied for an unless order [§35]. The Defendants said they would be unrepresented due to a lack of funds and did not attend the hearing on 1 September 2025, instead submitting written representations—a course the court later characterised as a choice rather than a necessity [§37, §142]. The court made an unless order requiring payment by 22 September 2025, failing which the Defences would be struck out and judgment entered for the full claimed sum plus interest [§42]. The Defendants again did not pay by the deadline, instead issuing the present application on 22 September 2025 [§43].

Costs Issues Before the Court

The Defendants’ application, as refined at the hearing, raised three core costs issues for determination [§2, §191]. First, whether the unless order dated 1 September 2025 should be discharged pursuant to the court’s general case management powers under CPR 3.1(7). Second, and alternatively, whether the Defendants should be granted relief from the sanctions imposed by that unless order under CPR 3.9. Third, whether the interim payment order should be varied under CPR 25.20(6) to account for security the Claimant allegedly held over the Defendants’ Belgian properties, a route which the Defendants argued could also lead to the discharge of the unless order. The Defendants had abandoned their request for permission to appeal [§189].

The Parties’ Positions

The Defendants’ Position: The Defendants contended that enforcing the unless order would cause unjust enrichment, as the Claimant would recover the full invoice value without undergoing an assessment that would likely result in significant reductions [§65–66]. They relied on a report from a costs draftsman, Mr Stuart Waters, which criticised the level of fees, suggesting duplication, excessive internal meetings, and unreasonable time [§58–63]. The Defendants argued that this report constituted a material change of circumstances—an argument the court rejected, holding that these were points always capable of being raised earlier [§59, §75, §181–184].

They maintained they were impecunious and that an unless order would stifle their defence, constituting a denial of justice [§73, §80]. They submitted that the unless order was effectively a variation of the interim payment order under CPR 25.20(6)(b) and should be discharged [§71, §78]. They also argued that the Claimant had security over Belgian properties, an assertion the court found was unsupported by reliable evidence as to value or priority [§74, §204–209].

The Claimant’s Position: The Claimant argued there had been no material change in circumstances to justify varying or revoking the unless order under CPR 3.1(7) [§92–93]. The points in Mr Waters’ report were always available to the Defendants and did not justify revisiting the orders [§84]. The Claimant stressed that the Defendants had never provided cogent evidence of impecuniosity, a point noted when making both the interim payment and unless orders [§94, §101]. The fact the Defendants could now fund leading counsel with a €200,000 loan undermined their impecuniosity claim [§97, §105].

The Claimant submitted that CPR 25.20(6) was the wrong mechanism, as the unless order was a separate sanction for non-compliance, not a variation of the interim payment amount [§82, §116]. On relief from sanctions, the Claimant argued the breach was serious and significant, the reason for default (alleged impecuniosity) was unevidenced, and all circumstances pointed against granting relief [§118–121]. The Claimant also noted the Defendants had forgone the opportunity to trigger a Solicitors Act assessment, which would have stayed the debt claim [§133–135, §162].

The Court’s Decision

Costs Judge Nagalingam dismissed the Defendants’ application in its entirety [§248].

On CPR 3.1(7) and Discharge of the Unless Order: The court applied the principles from Tibbles v SIG plc [2012] EWCA Civ 518 [§113, §193–194]. It found no basis to discharge the unless order. There was no “manifest mistake” in the order’s formulation [§196]. Crucially, there was no material change of circumstances since the order was made [§199–200]. The contents of Mr Waters’ report represented arguments the Defendants could and should have raised at the earlier hearings [§181–182, §184]. The existence of Belgian properties was known at the interim payment hearing, and the court found the purported security was of uncertain value and potentially illusory given competing claims from Belgian tax authorities [§52, §204–209]. The court noted that the only apparent change was the Defendants’ newfound ability to raise €200,000 for legal fees [§201].

On CPR 25.20(6) and Variation of the Interim Payment Order: The court rejected the argument that the unless order was a variation of the interim payment order under CPR 25.20(6)(b) [§213–214]. The two were separate orders; the unless order imposed a conditional sanction for non-compliance with the first, not an adjustment of the payment amount [§214–215]. Even if wrong on this point, the court saw no basis to discharge the order for the same reasons outlined elsewhere [§222].

On Relief from Sanctions under CPR 3.9: Applying the Denton principles [§223], the court held:

- - Stage 1: The breach (non-payment of a substantial interim costs order) was serious and significant [§227].
  - Stage 2: The reason for the breach—alleged impecuniosity—was not made out. The Defendants had consistently failed to provide “detailed, cogent and proper evidence” of their financial position, including full and frank disclosure of their means and prospects of raising funds, as required by authorities such as Michael Wilson & Partners Ltd v Sinclair [2017] EWHC 2424 (Comm) [§103–104, §231, §250]. Their evidence relied on inference rather than disclosure [§177, §254].
  - Stage 3: Considering all circumstances, relief was not justified [§233–248]. The Defendants had ample opportunity to challenge the fees via a Solicitors Act assessment but did not [§135, §237]. They ignored the interim payment order without applying to vary or appeal it [§34, §164–165]. Their non-attendance at the unless order hearing was a choice, not a necessity [§142–143, §230]. There was no public interest in allowing parties to ignore court orders based on unevidenced assertions [§236]. The Claimant’s legitimate interest in not litigating further without payment was recognised [§185].

On Impecuniosity and Unjust Enrichment: The court found the Defendants had not established impecuniosity, even to a prima facie standard [§232, §247]. The claim that enforcing the unless order would lead to unjust enrichment was rejected [§262]. The judgment sum represented a contractual debt, and the entry of judgment consequent upon the Defendants’ default was “a consequence of the default”, not unjust enrichment [§263–265]. The loss of the chance to argue reasonableness at an assessment was a direct consequence of the Defendants’ own conduct in breaching court orders [§246, §264–265]. The court also accepted the Claimant’s assurance that any recovery would be netted off against any security held [§260].

Consequently, the unless order and its sanctions remained in effect. The Defendants were ordered to pay the Claimant’s costs of the application, to be summarily assessed on the standard basis [§269].

Unless Orders In Respect Of Outstanding Costs Orders | Can’t Pay Or Won’t Pay?

Applications To Stay Enforcement Of Interim Costs Orders | The Principles

Court Deprecates Paying Party’s Opportunistic Conduct In Detailed Assessment Proceedings

CPR 3.14 | Late Costs Budget | Relief From Sanctions Denied

CPR 47.12 | Setting Aside A Default Costs Certificate | Application Denied

Points Of Dispute In Solicitor And Client Assessments | The Court Of Appeal Speaks

“Extraordinarily High” Costs With “Paucity Of Information” Result In £43 Million Payment On Account

New Costs Blog

The Technology and Construction Court’s decision in Município de Mariana v BHP Group (UK) Ltd & Anor [2026] EWHC 73 (TCC) provides practical guidance on determining payments on account in high-value litigation where costs evidence is limited and no costs budgeting has taken place.

Background

On 14 November 2025, the court handed down its judgment following the Stage 1 Trial of this substantial group litigation concerning liability for the collapse of the Fundão dam in Brazil [§1]. The claimants, including the Município de Mariana and numerous other individuals and entities, succeeded on key issues including strict liability under Brazilian Environmental Law, fault-based liability under the Civil Code, limitation/prescription, and the standing of the Municipalities [§2, §17]. The defendants, BHP Group (UK) Ltd and BHP Group Limited, were unsuccessful on those core points.

A consequentials hearing was listed to determine matters arising from that judgment [§3]. The parties were unable to agree on costs, leading to the need for the court’s determination on several consequential issues.

Costs Issues Before the Court

The court was required to determine five principal matters following the Stage 1 Trial judgment [§3]. The claimants applied for: (i) an order that the defendants pay their costs of the whole proceedings up to the conclusion of the Stage 1 Trial, including consideration of scope and any reduction for issues lost; (ii) a payment on account of those costs; (iii) pre-judgment interest on costs; and (iv) an order for a detailed assessment of costs to proceed forthwith. In response, the defendants applied for permission to appeal the substantive judgment and, in relation to costs, argued that no immediate order should be made or, if one was made, that it should be limited in scope and amount.

The Parties’ Positions

The claimants’ position was that they were the successful parties in the Stage 1 Trial and were therefore entitled to their costs [§4]. They sought an order for the defendants to pay their costs of the whole proceedings to date, quantified at approximately £189 million. They requested a payment on account of 60% of that sum, equating to £113.5 million [§27]. The claimants also sought pre-judgment interest on costs at a commercial rate of 1% above base from 1 August 2023, the date at which half the fees were incurred, arguing they had a contingent liability to funders that should be compensated [§47]. They further applied for an immediate detailed assessment of their Stage 1 Trial costs and the costs of earlier jurisdictional challenges ordered by the Court of Appeal [§53].

The defendants’ primary position was that no immediate costs order should be made; any decision on costs should be deferred until after the Stage 2 Trial when the overall success of the litigation would be clearer [§6]. If the court was against them on that point, they argued that any costs order should be limited to the costs of the Stage 1 Trial only, not the entirety of the proceedings. They submitted that the claimants’ costs should be subject to a significant percentage reduction to reflect the issues on which the defendants had succeeded, namely: strict liability under Article 927 (sole paragraph) of the Civil Code; liability under Articles 116 and 117 of the Corporate Law; and certain issues regarding settlements and releases [§19]. The defendants said the payment on account sought was “outrageously high” [§6] and “shockingly excessive” [§28], and pointed to the disparity between the parties’ costs (£189m vs £125m) as raising proportionality concerns [§39]. They opposed any award of pre-judgment interest, arguing the claimants had not paid costs upfront and were not out of pocket [§48].

The Court’s Decision

The court granted the claimants a costs order but on terms more limited than they had sought. Applying the principles in Weill v Mean Fiddler Holdings Ltd [2003] EWCA Civ 1058 and Langer v McKeown [2021] EWCA Civ 1792, the judge held it was appropriate to make an immediate costs order in respect of the Stage 1 Trial, as the claimants had obtained substantial findings on key liability issues [§13–§17]. However, the scope of the order was confined to the costs “of, and incidental to, the Stage 1 Trial” [§18]. The court rejected the argument that the claimants were entitled to the costs of the whole litigation to date, as that would presume ultimate success for all claimants, which remained to be determined.

On the issue of a percentage reduction, the court accepted the defendants’ submissions that the claimants had lost on discrete issues [§19–§24]. The failed claims under Article 927 (sole paragraph) of the Civil Code and the Corporate Law, along with certain points on settlements, had required separate expert evidence and court time. The post-collapse conduct point was discounted as “negligible” in terms of costs incurred [§23]. The court held that a fair and proportionate reduction to the claimants’ recoverable Stage 1 Trial costs would be 10% [§24].

The court then turned to the contentious issue of the payment on account. There had been no costs budgeting for the Stage 1 Trial [§33]. The claimants’ evidence of costs was found to be at a “very high level” with a “paucity of information”, making a “very cautious approach” necessary [§38]. The judge noted the huge disparity between the parties’ costs and expressed concern over reasonableness and proportionality [§39].

Critically, the court held that substantial costs related to claimant sign-up, processing, and call centre operations were not recoverable as part of the Stage 1 Trial costs. Applying Motto v Trafigura Ltd [2011] EWCA Civ 1150 at [104]–[114] and Weaver v British Airways plc [2021] EWHC 217 at [41]–[51], the court held that it was necessary to separate sign-up and collateral costs from subsequent legal advice and assistance [§40]. If recoverable at all, such costs would form part of the costs of the overall proceedings, rather than the Stage 1 Trial.

Stripping out those costs and making further adjustments for funding and insurer-related disbursements, the court arrived at a working figure of approximately £80 million for the purpose of the payment on account calculation [§41]. Applying the 90% recovery rate to this figure yielded approximately £72 million. Adopting a cautious 60% estimate for the payment on account, the court ordered £43 million [§41–§42]. The order for this payment was stayed pending the determination of any application for permission to appeal [§46].

On pre-judgment interest, the court exercised its discretion under CPR 44.2(6)(g) to award interest, applying the principles from Jones v Secretary of State for Energy and Climate Change [2014] EWCA Civ 363 [§50]. Although the claimants had not funded the litigation directly, they faced a contingent liability to pay success fees from any damages awarded, representing a funding cost that reduced their ultimate recovery [§51]. The court awarded interest at 1% above base rate from 1 August 2023, the date by which half the fees were incurred — an approach the court described as “pragmatic and proportionate” — up to the date of the costs order [§52].

The court refused the claimants’ application for an immediate detailed assessment of costs, adhering to the general rule in CPR 47.1 that assessment should await the conclusion of proceedings [§54]. The judge found that an assessment would be “complex and protracted” and would be “disruptive” to the preparation for the Stage 2 Trial [§56].

Finally, the court refused the defendants’ application for permission to appeal [§73–§75]. Having reviewed the nine detailed grounds, which largely alleged a failure by the trial judge to engage with key issues and provide adequate reasons, the court held the appeal had “no real prospect of success” [§73]. The judge provided a reasoned rebuttal of each ground [§64–§72], concluding that the substantive judgment had adequately addressed the critical issues and evidence. There was “no other compelling reason” for the appeal to be heard [§74]. Permission was refused, though the defendants’ time to apply to the Court of Appeal was extended by 28 days [§76].

CPR 44.2(8) | Payments On Account In Civil Litigation

Group litigation: a determination of costs related to common issues

Issues Based And Proportional Costs Orders: When Should They Be Made?

Payments On Account In Long Running Clinical Negligence Cases | Don’t Just Ask

An approach to costs where a claimant has “overwhelmingly” succeeded at trial but lost on some issues

CPR 44.2(8) | No Restriction To Ordering A Payment On Account

Executors Lose Estate Indemnity After Hostile Removal Litigation

New Costs Blog

The High Court’s decision in Dorothy House v Helme [2026] EWHC 75 (Ch) confirms that executors who defend removal applications on their own behalf, rather than for the estate’s benefit, have no right to an indemnity from the estate for their litigation costs.

Background

The claim concerned the administration of the estate of Mary Organ, who died in December 2017. Her will appointed the first defendant, a solicitor employed by Richard T Bate & Co, and the second defendant, her first cousin once removed, as her executors and trustees [§7-9]. The estate was substantial, valued for probate at £4,717,302 net [§8]. The claimants, two charities, were the sole residuary beneficiaries.

The administration was characterised by significant delay. The defendants did not notify the claimants of their interest under the will; although this was not a breach of legal duty, it undermined the claimants’ confidence in the administration [§11, §14, §45, §56]. Instead, the claimants learned of their entitlement from a third party, Mr Outlaw, in August 2020, over two and a half years after the death [§11]. A grant of probate was not extracted until April 2022 [§11]. The defendants attributed the delays to complexities within the estate, including investigating lifetime gifts and dealing with the conduct of Mr Outlaw [§12-13].

A central issue arose concerning the sale of the main estate asset, Church Farm. In June 2024, an offer of £2.2 million was received from Simon Evans and his wife [§19]. Mr Evans was a first cousin once removed of the deceased, making him the second defendant’s second cousin [§7, §19]. Critically, Mr and Mrs Evans were also clients of the first defendant’s law firm, and the firm proposed to act for both the estate and the purchasers in the transaction [§19-21]. Despite repeated requests from the claimants from August 2024 onwards to re-market the property when the purchasers could not demonstrate available funds, the defendants persisted with the sale for approximately 18 months without putting the property back on the open market [§22-27, §65-67].

Frustrated by the lack of progress and concerned about conflicts of interest, the claimants’ solicitors wrote to the defendants on 13 August 2025, enclosing a draft consent order inviting them to step down without having to pay the claimants’ costs [§26]. This offer was refused. Following further correspondence, on 10 December 2025, the claimants threatened to apply for an injunction if undertakings to preserve estate assets were not provided by 11 December [§30]. No undertakings were given.

On 12 December 2025, the claimants issued proceedings seeking the removal of the defendants as personal representatives and the appointment of Stone King Trust Corporation Limited in their place [§1]. They simultaneously applied for an interim injunction to preserve the estate’s assets. Notably, on the morning of the same day, the defendants exchanged contracts for the sale of Church Farm without prior notice to the claimants [§32]. The defendants’ solicitors had stated in correspondence on 8 December that exchange would take place “at the beginning of next week” [§29, §68]. The court drew the inference that the sale was accelerated to avoid the possibility that an injunction would be granted on 15 December [§69].

The injunction application was heard on 15 December 2025. The defendants consented to an injunction preventing them from disposing of or diminishing estate assets, and directions were given for a disposal hearing [§34]. By the time of the disposal hearing on 7 January 2026, the defendants conceded that they should be removed and replaced [§4]. The contested issues before the court were therefore limited to costs.

Costs Issues Before the Court

Following the defendants’ concession on their removal, the court was required to determine three specific costs issues [§5]:

1. 1. Whether the defendants should be ordered to pay the claimants’ costs of the claim and the injunction application.
  2. If so, whether those costs should be assessed on the indemnity basis rather than the standard basis.
  3. Whether the defendants were entitled to an indemnity from the estate for their own legal costs and for any costs they were ordered to pay to the claimants.

These issues required the court to consider the defendants’ conduct both in the administration of the estate and in the litigation itself. The judge distinguished between these two categories of conduct in his analysis [§72].

The Parties’ Positions

The Claimants’ Position: The claimants argued that they were the successful parties and that the defendants should pay their costs [§72]. They contended that an award of indemnity costs was justified due to the defendants’ conduct in the litigation, which was “out of the norm” [§72]. This conduct included accelerating the exchange of contracts for the Farm after being put on notice of the injunction application, failing to serve evidence in a complete and timely manner, and unreasonably refusing earlier offers to step down without a costs order [§73].

Regarding the indemnity, the claimants submitted that the defendants were not entitled to an indemnity from the estate for any costs [§75]. They argued that the litigation was hostile, and the defendants had incurred costs in defending their own positions, not in acting for the benefit of the estate [§75].

The Defendants’ Position: The defendants did not dispute that the claimants were the successful party, but resisted an order for indemnity costs [§72-73]. Critically, they argued that they were entitled to a full indemnity from the estate for both their own costs and any costs payable to the claimants [§75]. They submitted that their opposition to removal was undertaken in what they believed to be the best interests of the estate, specifically to facilitate the sale of the Farm. They relied on the principle, acknowledged in Shufflebotham v Shuff-Wentzel [2025] EWHC 3321 (Ch), that any doubt should be resolved in favour of the fiduciary [§53].

The Court’s Decision

The court ordered the defendants to pay the claimants’ costs and made determinations on the specific issues as follows.

1. Liability for Costs and the Indemnity Basis: Applying CPR rule 44.2, the judge held that the claimants were the successful party and there was no good reason to depart from the general rule [§72]. The judge then considered whether to award costs on the indemnity basis, guided by Excelsior Commercial & Industrial Holdings Ltd v Salisbury Hammer Aspden and Johnson [2002] EWCA Civ 879, which requires conduct or circumstances “out of the norm” [§54, §72].

The judge made clear that for this purpose he was not concerned with the defendants’ conduct of the administration as such; instead, he was looking simply at the claim and application made by the claimants, and the defendants’ conduct of their side of it [§72].

The judge found such conduct present [§73]. They had accelerated the exchange of contracts on the very morning they were served with the injunction application, having previously indicated exchange would occur “at the beginning of next week” [§68-69]. This was done without any plausible explanation and the court drew the inference that it was to avoid the possibility of an injunction [§69]. Furthermore, they had failed to serve their evidence completely by the agreed deadline and had served further evidence without permission [§35, §73]. Their refusal of more than one offer to retire without paying costs also contributed to this finding [§73]. The judge also noted that it may perhaps be that their solicitors did not have much experience of this kind of High Court litigation, but that was a matter between the defendants and their solicitors, and was not an answer to the claimants’ submission [§73]. Consequently, the defendants were ordered to pay the claimants’ costs on the indemnity basis [§73].

2. The Defendants’ Indemnity from the Estate: The judge analysed this issue by reference to the framework in Price v Saundry [2019] EWCA Civ 2261, the Trustee Act 2000, s.31(1), and CPR PD46, paragraph 1 [§50-53, §74].

There are two elements to the indemnity: first, that the expense was “properly incurred”; second, that it was incurred “when acting on behalf of the estate” [§74].

On the second element, the judge concluded that the defendants never incurred the costs of this litigation when acting on behalf of the estate [§76]. The character of the proceedings was hostile litigation from the outset. The defendants initially resisted removal vigorously, challenging all the claimants’ complaints about their behaviour and seeing no reason for their being removed [§76]. The fact that by 22 December 2025 they had offered to consent to removal (on terms including an indemnity) confirmed that they did not consider the estate’s best interests required their continuation in office [§75]. By the disposal hearing, they no longer opposed removal and were simply concerned to argue about costs and their indemnity [§75]. In these circumstances, the defendants were never entitled to an indemnity because they entered into and conducted the litigation on their own behalf, not on that of the estate [§76].

In the alternative, the judge held that even if the defendants had incurred the litigation costs on behalf of the estate, they would have been deprived of the indemnity because the costs were not “properly incurred” [§77]. Following Price v Saundry, “properly incurred” means “not improperly incurred”, and the right can be lost due to misconduct, which includes not only breach of duty but also unreasonable conduct [§50, §74].

The judge found the following misconduct in the defendants’ administration that was directly relevant to the litigation [§77]:

- - Inordinate and unjustified delay in selling the Farm, including taking an unjustified risk in waiting approximately 18 months for purchasers who did not have available funds [§58, §66-67];
  - Unauthorised self-dealing through the sale of estate machinery to the second defendant without seeking the claimants’ consent [§60];
  - Charging the estate at a professional solicitor rate for non-legal work, namely attending the Farm to water cattle [§61];
  - Placing themselves in a position of acute conflict of interest by allowing their solicitors to act for both sides in the Farm sale, without obtaining the claimants’ fully informed consent until over 15 months after the offer was made [§62-64].

This conduct amounted to breaches of duty and seriously unreasonable behaviour, more than mere mistake [§77]. Consequently, the defendants lost any right to an indemnity from the estate for their own costs or for the costs payable to the claimants [§77-78].

CPR 44.2(8) | No Restriction To Ordering A Payment On Account

CPR 44.2 And The Courts’ Discretion As To Costs

Indemnity Basis Costs Following Discontinuance

Refusal To Mediate Does Not Always Justify Indemnity Costs

Indemnity Costs And The High Risk Of Pursuing A Weak Case

Dishonest Evidence And Baseless Allegations Justify Indemnity Costs Order

CFA Termination | Why Accepting Repudiation Instead Of Using Contractual Rights Left Solicitor With Nothing

New Costs Blog

The High Court’s decision in The Winros Partnership v Global Energy Horizons Corporation [2025] EWHC 3362 (Ch) confirms that contractual risk allocation in a CFA precludes unjust enrichment claims where the agreement already provides for the consequences of termination.

Background

The case concerned an appeal by The Winros Partnership (formerly Rosenblatt Solicitors) against a decision of Senior Costs Judge Gordon-Saker in the Senior Courts Costs Office. This was the second appeal in the long-running costs dispute between these parties; the procedural history and the abuse of process challenge to late-raised objections was considered in the First Judgment, covered in our earlier post.

The underlying dispute arose from a series of conditional fee agreements (CFAs) between Rosenblatt and its client, Global Energy Horizons Corporation, for litigation services. Three CFAs were entered: CFA-1, CFA-2, and CFA-3. The relationship deteriorated, leading Rosenblatt to terminate CFA-3 by accepting Global Energy’s repudiatory breach in a letter dated 24 February 2016. This termination was subsequently held to be valid by Trower J in earlier proceedings [§7].

In April 2016, Global Energy commenced proceedings under the Solicitors Act 1974 seeking detailed assessment of four bills rendered by Rosenblatt [§9]. The key bills were a 2012 bill (for work under CFA-2) and a 2016 bill (for work under CFA-3). Trower J had already determined that the 2012 bill was not a statute bill and conferred no immediate right to payment [§11]. The appeal focused on the 2016 bill, delivered shortly after termination, which Rosenblatt sought to have assessed. Rosenblatt had also commenced separate Chancery proceedings for damages arising from the termination, which were stayed pending the outcome of the costs assessment [§12, §37].

At the detailed assessment hearing, Global Energy raised “Objection 1”, contending that Rosenblatt was not entitled to payment of its fees for work done up to the termination date where no “win” had been achieved under the CFA [§4, §13]. The Senior Costs Judge framed the issue as: where a CFA retainer is terminated following the client’s repudiation, is the solicitor entitled to payment of fees if no success fee had been achieved? He concluded that Rosenblatt was not entitled to deliver the 2016 bill, that Global Energy was not liable to pay it, and therefore the bill must be assessed at nil [§65–66]. It was against this decision that Rosenblatt appealed.

Costs Issues Before the Court

The core costs issue was the entitlement of a solicitor to payment of fees under a conditional fee agreement terminated due to the client’s repudiatory breach, where the condition for payment of the success fee (a “win”) had not been met. The appeal required the court to determine:

1. 1. Whether the Senior Costs Judge erred in law in concluding that a solicitor could not recover fees (absent a success fee) following termination for repudiation, distinguishing the position from termination of an “ordinary” retainer for good cause.
  2. Whether Rosenblatt had an alternative claim in unjust enrichment (a quantum meruit) for a total failure of basis, which could found an entitlement to payment, and if so, whether such a claim could properly be determined within a detailed assessment proceeding under the Solicitors Act 1974.

The appeal proceeded on the agreed basis that CFA-3 was an entire contract and had completely replaced CFA-2 [§20, §23].

The Parties’ Positions

Rosenblatt’s Position: Rosenblatt contended the Senior Costs Judge erred. It argued that the long-established common law rule, as stated obiter in Richard Buxton (a firm) v Mills-Owens [2010] EWCA Civ 122, entitled a solicitor terminating an entire contract for good cause to be paid for work done [§27–28]. It submitted this principle should apply equally to CFAs. Crucially, Rosenblatt argued that its primary case on appeal was now a claim in unjust enrichment [§38, §57]. It contended that the basis for its work under CFA-3—performance leading to a “win” or, if not, termination under the agreement’s specific clauses—had totally failed when Global Energy’s repudiatory breach forced termination outside the contractual framework. Rosenblatt submitted that this created a vacuum allowing a restitutionary quantum meruit for the value of services rendered. It argued this claim could and should be determined within the detailed assessment.

Global Energy’s Position: Global Energy supported the Senior Costs Judge’s reasoning. It argued that CFA-3’s express terms, particularly clause 14.3, constituted a detailed contractual scheme allocating risk for termination due to the client’s failure to meet responsibilities, while leaving the common law damages remedy intact. Clause 14.3 provided [§14]:

“Rosenblatt can end this agreement if it believes the Client does not meet its responsibilities. If this happens, the Client will have to pay Rosenblatt’s fees for the work done to the termination date and disbursements.”

By choosing to accept a repudiatory breach instead of invoking clause 14.3, Rosenblatt elected a different remedial path (a claim for damages) [§37]. The contract had anticipated and provided for the scenario, allocating the risk that Rosenblatt would recover no fees if it did not use the clause 14.3 mechanism. Consequently, there was no room for a claim in unjust enrichment, as to allow one would upset the parties’ contractual risk allocation [§47–48]. Global Energy also argued that a freestanding unjust enrichment claim was not a matter for determination on a Solicitors Act assessment.

The Court’s Decision

Mr Justice Marcus Smith dismissed the appeal, upholding the Senior Costs Judge’s decision that the 2016 bill should be assessed at nil [§56]. The court’s analysis focused on two key areas: the claim in unjust enrichment and the propriety of the detailed assessment forum.

On the unjust enrichment claim, the court held there had been no total failure of basis. Applying principles from Dargamo Holdings Ltd v Avonwick Holdings Ltd [2021] EWCA Civ 1149 and Barton v Morris [2023] UKSC 3, the court emphasised the “Obligation Rule” and the importance of respecting contractual risk allocation [§41–49]. CFA-3’s clause 14 was a detailed provision anticipating various contingencies, including client non-performance (clause 14.3). This clause expressly stipulated the financial consequence: payment of normal fees and disbursements, but no success fee [§53].

The court found that while the common law remedy for repudiatory breach co-existed with these contractual terms, its existence did not create a vacuum allowing a restitutionary remedy that duplicated or circumvented the specific risk allocation in clause 14.3 [§54–55]. The parties had expressly agreed what would happen if Rosenblatt ended the agreement because Global Energy did not meet its responsibilities. To permit a quantum meruit claim in these circumstances would unjustly redistribute the risks expressly allocated by the contract. The court concluded that the common law remedy was a “last resort”, really intended for those cases not anticipated in clause 14 [§55]—and since clause 14.3 specifically addressed this scenario, there was no gap for restitution to fill. For substantially the same reasons as the Senior Costs Judge, Rosenblatt’s restitutionary claim failed [§56].

Obiter, the court also addressed the appropriateness of determining such a claim within a detailed assessment [§57–64]. Relying on Jones v Richard Slade and Co Ltd [2022] EWHC 1968 (QB), it held that the Solicitors Act assessment process is a regulatory review of a bill’s reasonableness, not a vehicle for enforcing debts or determining generalised claims such as unjust enrichment [§60–61]. While the court had jurisdiction to decide the point, it was not the appropriate forum [§63]. Such claims, if genuinely arguable, should be pursued in separate High Court proceedings, with the assessment potentially stayed. The effective dismissal of the claim within the assessment was therefore correct [§64].

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Interim Statute Bills And CFAs, Can They Co-Exist?

Solicitor And Client Assessments: Introduction

What Might Amount To “Special Circumstances” Under s70(3) Of The Solicitors Act 1974?

Slade v Boodia Overturned

Court Of Appeal Overrules Mundy | 90:10 Liability Offers Valid Under Part 36 — But Only Where Liability Is Determined

New Costs Blog

The Court of Appeal’s decision in Smithstone v Tranmoor Primary School [2026] EWCA Civ 13 overrules Mundy v TUI and confirms that 90:10 liability Part 36 offers are valid in principle, while clarifying that such offers only trigger CPR 36.17(4) where there is a determination of liability rather than a global monetary settlement.

Background

The claim arose from a minor injury sustained by Jayden Smithstone, a ten-year-old pupil, when his fingers became trapped in a door at Tranmoor Primary School on 25 September 2018 [§2]. A claim in negligence and under the Occupiers’ Liability Act 1957 was submitted via the Claims Notification Form into the Portal on 31 October 2018 [§3], bringing it into the Low Value Personal Injury Protocol and the associated fixed costs regime.

On 13 December 2018, before any medical report had been served, the claimant made a Part 36 offer to settle liability on a 90/10 basis in his favour [§4]. This offer was rejected by the defendant on 19 December 2018. Proceedings were subsequently issued. The defendant denied liability and raised issues of contributory negligence in its Defence [§5]. The case was allocated to the fast track and listed for trial. A further without prejudice offer to settle the entire claim for £3,500 was made by the claimant on 18 March 2020, which was not accepted [§6-7].

The matter was listed for a fast track trial before Deputy District Judge Ruwena Khan on 26 November 2020 [§8]. On the day of trial, the defendant’s witness failed to attend and the parties negotiated a settlement of the claim in the global sum of £2,650 [§8-9]. The settlement was put before DDJ Khan for approval pursuant to CPR r.21.10, as the claimant was a child. The judge approved the settlement sum [§10].

The parties were unable to agree on costs. The claimant argued that the case should be taken outside of the fixed costs regime due to the consequences of its Part 36 offer on liability, invoking CPR r.36.17 [§10]. The defendant contended that fixed costs applied. DDJ Khan ruled that the fixed costs regime applied, stating there was nothing exceptional about the case and that the settlement sum was lower than the claimant’s previous offers [§12]. An order was sealed on Form N24 recording the approval of the £2,650 settlement and ordering the defendant to pay the claimant’s fixed costs, summarily assessed at £7,114.50 [§13].

Permission to appeal was granted more than three years later [§14]. His Honour Judge Baddeley heard the appeal on 19 August 2024. The defendant relied heavily on the High Court decision in Mundy v TUI UK Ltd [§14]. HHJ Baddeley, considering himself bound by Mundy, dismissed the appeal [§21]. The claimant then appealed to the Court of Appeal.

Costs Issues Before the Court

The central dispute concerned the recoverable costs following settlement of a fast track personal injury claim initially subject to fixed costs. The Court of Appeal was required to determine four specific issues [§27]:

1. 1. Whether the court-approved settlement constituted a “judgment” for the purposes of engaging CPR r.36.17.
  2. Whether, as a matter of principle, a claimant’s Part 36 offer to settle liability on a 90/10 basis (without specifying a monetary sum) could be effective to trigger the enhanced costs consequences under CPR r.36.17(4).
  3. If so, whether on the facts of this case the settlement outcome was “at least as advantageous to the Claimant” as the proposals in his 90/10 liability offer.
  4. If the answer to issue 3 was no, whether it would be “unjust” to confine the claimant’s solicitors to recovering fixed costs.

The Parties’ Positions

The Appellant/Claimant’s Position: The claimant argued that DDJ Khan had erred in law by not awarding the consequences under CPR r.36.17(4) when there was a “judgment” which was “at least as advantageous” as the terms of the Part 36 offer, and no finding that such consequences would be unjust [§23(1)]. It was submitted that the decision in Mundy v TUI, which the first appeal judge felt bound by, was decided per incuriam and should be overruled [§23(2)]. In the alternative, it was argued that the defendant’s conduct in running the case to a full trial on liability without making any offer on liability constituted circumstances justifying the use of the escape clause in CPR r.36.17 where it would be “unjust” to confine the claimant to fixed costs [§23(3)].

The Respondent/Defendant’s Position: The defendant advanced two primary arguments [§24]. First, it contended that the court-approved settlement was not a “judgment” for the purposes of CPR r.36.17, as it was a consensual agreement placed before the court for approval under CPR r.21.10. Second, should the court find there was a judgment, the 90/10 liability offer could not engage CPR r.36.17(4) because: (a) for a money claim, “more advantageous” is defined in money terms under CPR 36.17(2); (b) the offer made no monetary proposal and was therefore incapable of comparison; (c) the offer sought a liability concession which was never given; and (d) the settlement sum was less than 90% of the claimant’s own monetary offer [§24(ii)]. The defendant argued the 90/10 offer was not a genuine offer of concession but a tactical step, relying on AB v CD [§25]. In the further alternative, the defendant submitted it would be “unjust” to apply CPR r.36.17(4) in the context of a low value money claim where liability was not subject to separate determination [§26].

The Court’s Decision

The Court of Appeal (Bean LJ giving the lead judgment, with Phillips and Stuart-Smith LJJ agreeing) dismissed the appeal [§38-40].

On the first issue, the court held definitively that the court order approving the settlement was both a judgment and an order [§30]. Relying on Vanden Recycling Ltd v Kras Recycling BV [§29], the court found that the Form N24, which ordered the defendant to pay both damages and costs, was in substance and effect a final decision on the claim. Attempts to distinguish between the terms “judgment” and “order” were misconceived in this context [§30].

On the second and pivotal issue of principle, the Court of Appeal overruled the High Court decision in Mundy v TUI [§35]. Bean LJ found it “unfortunate” that Mundy had been decided without reference to binding Court of Appeal authority, specifically Huck v Robson, and indeed that save on the separate question of set-off, “no authorities are referred to at all” [§34]. In Huck, the Court of Appeal had held that a claimant’s 95/5 liability offer was effective for Part 36 costs consequences [§32]. The policy of the Civil Procedure Rules was to encourage settlement, including of discrete issues like liability [§34]. A 90/10 offer could constitute a genuine offer to compromise, reflecting a claimant’s legitimate desire for certainty over the ordeal of trial, and was not inherently incompatible with the mechanism of CPR r.36.17 [§32, §34]. The “generous outcome” for a claimant who beats their own Part 36 offer was consistent with the policy of the rule as affirmed in Broadhurst v Tan [§33]. Bean LJ also referred to Hill J’s observation in Chapman v Mid and South Essex NHS Foundation Trust that the factual context of Mundy was important [§34].

On the third issue – application to the facts – the claimant’s case failed [§36]. The court held that while a 90/10 liability offer could in principle engage CPR r.36.17, it did not do so on the facts of this case. For the offer to be triggered, the judgment needed to be “at least as advantageous” as the offer’s proposals. Here, liability was never determined [§36]. If the defendant had admitted liability, or DDJ Khan had tried the case and found the defendant 100% liable, there would have been a potential basis for awarding the claimant, pursuant to CPR 36.17, costs relating to the issue of liability from the date of the 90:10 offer [§36]. But that was not what happened. It was therefore impossible to say that the outcome of the case was a finding, even on liability, more advantageous to the claimant than a 90/10 apportionment of liability [§36]. Consequently, CPR r.36.17(4) did not apply.

On the fourth issue, the court rejected the argument that it was unjust to confine the claimant to fixed costs [§37]. Citing Webb v Liverpool Women’s NHS Foundation Trust, Bean LJ noted that the burden of showing that the usual consequences of Part 36 will be “unjust” presents a “formidable obstacle” [§37]. The defendant’s conduct in defending the claim to trial was not, in itself, a sufficient reason to depart from the fixed costs regime. Conversely, the court noted that had the claimant triggered CPR r.36.17, it would equally not have been unjust to require the defendant to pay the enhanced costs [§37].

As the claimant failed on the third issue, the order for fixed costs made by DDJ Khan was upheld and the appeal was dismissed [§38].

CPR 36.17 | Part 36 Offer To Accept £1 Was A Genuine Attempt To Settle

CPR 36.17 And The Just Rewards Of A Good Part 36 Offer

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Fixed Costs Under Section III Of CPR 45: Is There Any Escape?

Fixed Recoverable Costs Are Not The Benchmark For Fair Solicitor-Client Remuneration

New Costs Blog

The Senior Courts Costs Office’s decision in Perrett v Wolferstans LLP [2026] EWHC 50 (SCCO) confirms that fixed recoverable costs do not establish the benchmark for fair remuneration between solicitor and client.

Background

The proceedings involved a claim under the Solicitors Act 1974 by Mr Ryan Perrett against his former solicitors, Wolferstans LLP. The claim concerned the assessment of costs billed under a conditional fee agreement (CFA) relating to a personal injury claim. The profit costs in the solicitor’s statutory bill, dated 13 April 2022, were claimed at £4,800 (including VAT), with an additional success fee of £1,775.85. The recoverable costs from the opponent in the underlying claim were fixed at £900 [§7].

A reserved judgment on preliminary issues was delivered on 17 January 2025 [§1]. A subsequent hearing on 21 May 2025 dealt with the remaining “line by line” items of the bill [§1]. Following that detailed assessment, the profit costs were reduced from the claimed figure to a sum in the region of £3,850 to £4,000 (including VAT), with the success fee being allowed in full [§1]. For the purposes of the final issue, the court treated the assessed figure as £3,864 [§2].

The sole remaining issue for determination was a holistic one. The court needed to “step back” and consider whether the sum arrived at after the item-by-item assessment was, in all the circumstances, a fair and reasonable sum for the purposes of the Solicitors’ (Non-Contentious Business) Remuneration Order 2009 (“the 2009 Order”) [§3]. This required an overall evaluation of the costs, taking into account the factors listed in Article 3 of the 2009 Order and any other relevant circumstances.

Costs Issues Before the Court

The core costs issue was whether the profit costs assessed at £3,864 (treated as the assessed figure for simplicity), having been found reasonable on an item-by-item basis, should be subject to a further reduction to reflect broader considerations of fairness. The claimant’s central argument was that the costs were unreasonable because they vastly exceeded the fixed recoverable costs of £900 that could be recovered from the opponent [§10]. He contended that the solicitors had a duty to clearly inform him of this potential shortfall and that their failure to do so meant the higher charges were not fair and reasonable remuneration.

The issue engaged the proper approach to assessing non-contentious business costs under the 2009 Order, specifically the weight to be given to the time spent versus other factors, and the relevance of the level of inter partes recoverable costs to the solicitor-client assessment.

The Parties’ Positions

The Claimant’s Position: Mr Carlisle, for the claimant, argued that the court should make an overall assessment of a fair and reasonable sum. He submitted that the fixed recoverable costs regime represented a “swings and roundabouts” scheme intended to provide fair remuneration for solicitors when taken as a whole, citing Nizami v Butt and Kilby v Gawith [§4–6]. The claimant contended that a solicitor’s failure to clearly warn a client that costs incurred at hourly rates would likely exceed the fixed recoverable sum was a failure to look after the client’s interests [§10]. He drew an analogy with the duty identified in St James v Wilkin Chapman regarding costs management and budget overspends [§10–11]. The claimant argued that such a failure rendered the costs “unusual or unreasonable” [§11]. He also relied on the outcome in Belsner v Cam Legal Services, where the Court of Appeal allowed only slightly more than fixed recoverable costs, as providing context for where the court should intervene [§8–9].

The Defendant’s Position: Mr Brighton, for Wolferstans LLP, submitted that the claimant’s arguments largely pertained to preliminary issue 5, which had already been decided [§13]. On the substantive point, he argued there was no proper analogy between costs budgeting and fixed recoverable costs, as the latter’s final figure is only known at the end of the case [§14]. The defendant maintained that the client care documentation, which included a clear 25% cap on deductions from damages, provided sufficient information for informed consent, relying on the decision in Swann v Slater & Gordon LLP [§15]. He emphasised that the hourly rates charged were at or below the guideline hourly rates and that the claimant was aware of the contractual terms, having signed a confirmation upon settlement [§17]. The defendant’s position was that the contractually agreed terms should govern and that the sum assessed was fair.

The Court’s Decision

Senior Costs Judge Rowley dismissed the claimant’s arguments and held that the sum of £3,864 was fair and reasonable remuneration under the 2009 Order [§26].

The court first reiterated the methodology set out in its January judgment. Where a retainer is based on hourly rates, the starting point is to assess the reasonableness of the time spent and the rates charged. Only after completing that exercise should the court “step back” to consider if the resulting figure requires adjustment in light of all the circumstances, particularly the factors in Article 3 of the 2009 Order [§18–19]. The judge distinguished the 1970s authorities like Treasury Solicitor v Regester, where other factors such as property value “dwarfed” the time spent, finding them inapplicable to the present case [§19].

The court rejected the claimant’s core proposition that inter partes fixed recoverable costs represented the benchmark for fair solicitor-client remuneration. It held that the “swings and roundabouts” fairness described in Nizami and Kilby related to the scheme of recovery between litigating parties, not to the contractual relationship between solicitor and client [§22–23]. It noted the obiter remarks of Lavender J in SGI Legal LLP v Karatysz that what is usual between solicitor and client is a very different question from what is recoverable inter partes [§23–24]. The court further observed that the concept of “unusual costs” under CPR 46.9 relates to contentious business and cannot simply be transferred to non-contentious business to create a presumption of unreasonableness based on exceeding recoverable costs [§24].

The court found that the budgets/fixed costs analogy advanced by the claimant was not sustainable. Budgets are prepared by solicitors who have a reasonable idea of costs at the outset, whereas the level of fixed recoverable costs is only known at the conclusion of the case [§14].

The judge found that the requirement to keep the client informed was satisfied by the clear contractual term capping the claimant’s liability at 25% of damages [§25]. The court had previously found the claimant understood this term. While more detailed explanation of the potential shortfall would have been preferable, its absence did not render the ultimately charged costs unfair or unreasonable. The judge considered the hourly rates and reduced the junior fee earners’ rates. Some time was also disallowed on the item-by-item assessment [§20]. These matters having already been addressed, it would be incorrect to take them into account again in deciding whether the resulting figure ought to be adjusted further [§20].

Consequently, having factored in the relevant considerations through the detailed assessment, no further global adjustment was warranted. The sum of £3,864 was determined to be fair and reasonable to both the solicitor and the client [§26].

Solicitor and client assessments: Introduction

Costs Estimates And The Relevance Of A Costs Budget As Between Solicitor And Client

The Consequences Of An Inadequate Costs Estimate And A Flawed Risk Assessment

Costs Budgeting And The Effect Of CPR 46.9(3)(c)

CFAs Enforceable With 25% Damages Cap But Success Fees And Hourly Rates Reduced For Lack Of Informed Consent

The Extended Fixed Recoverable Costs Regime | 18 Months On