No Deviation From 'Costs Follow The Event' Following s68(1) Application Where Solicitor Failed To Respond To Multiple Requests For Final Statute Bill

Franklin v Your Lawyers Ltd [2025] EWHC 984 (SCCO)

FRANKLIN V YOUR LAWYERS LIMITED [2025] EWHC 984 (SCCO)

Franklin v Your Lawyers Limited [2025] EWHC 984 (SCCO) addressed the incidence of costs following an order for the delivery of a final statutory bill under section 68(1) of the Solicitors Act 1974. The claimant had requested a final bill from his former solicitors following a successful personal injury claim. Proceedings had been issued under section 68(1) after repeated unsuccessful attempts to obtain the bill. Said bill was then delivered before the matter came before the court. Only costs remained to be determined. To that end, the court considered the parties’ conduct under CPR 44.2, examining pre-action communications and procedural interactions. Acting Senior Costs Judge Rowley rejected the defendant’s arguments that the claimant’s conduct warranted an alternative costs order, finding that the claimant had reasonably pursued the bill’s delivery through progressively formal communications and had complied with pre-action protocols. The court determined that the claimant was the successful party, applying the general rule that costs follow the event, and awarded costs to the claimant to be assessed on the standard basis. Critically, the judgment found that the absence of subsequent assessment proceedings (under section 70) should not prejudice the costs recovery for the successful section 68 application.
Link to full judgment

Consequently, for the reasons I have given, I do not think that the claimant’s conduct of this claim, either pre or post commencement of proceedings amounts to “conduct” as described in CPR 44.2 which ought to lead to the making of any order other than the costs will follow the event. The claimant has been the successful party and I award the costs of the application to the claimant.

Citations

Rees v Gateley Wareing [2014] EWCA Civ 1351 A solicitor must deliver a final statute bill to the client when requested, and failing to do so may justify the initiation of proceedings under s68 of the Solicitors Act 1974 to compel delivery. Baxter v J Solicitors [2022] EWHC 1563 (SCCO) Where a solicitor delivers a final statute bill only after proceedings are issued, the court may consider the timing and the reasonableness of the client’s conduct in determining the order for costs. O’Sullivan v Holmes and Hills LLP [2023] EWHC 508 (KB) Challenges to costs in solicitor-client assessments must address individual entries rather than summary totals, with particularised objections to enable a fair response and efficient court proceedings.  
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Key Points

  • The general rule under CPR 44.2 that the unsuccessful party pays the successful party’s costs applies in solicitor-client disputes unless the court concludes that the parties’ conduct justifies a different order. [11, 36]
  • Failure by a solicitor to respond substantively to multiple pre-action requests for a final statute bill can justify a former client’s decision to commence proceedings under section 68 of the Solicitors Act 1974. [25–27]
  • A solicitor’s past pattern of compliance with requests for bills without proceedings does not override the client’s right to bring proceedings where current correspondence goes unanswered. [22–24]
  • Claimant solicitors are not required to initiate telephone contact or take additional informal steps before issuing proceedings where prior written requests have not been met with a substantive response. [28]
  • The court may consider a solicitor’s vague or unexplained objections to an application for delivery of a bill as conduct justifying an order for costs in favour of the applicant, particularly if this obstructs procedural clarity during litigation. [32–33]

"In the absence of any substantive response to any of the correspondence, and indeed no response at all after the request for a further form of authority, in my judgment the defendant cannot complain that the claimant commenced Part 8 proceedings."

Key Findings In The Case

  • The defendant failed to substantively respond to multiple written requests from the claimant’s solicitor for a final statute bill, including after a valid “wet ink” authority was supplied, which the court found justified the claimant’s initiation of proceedings under s68 of the Solicitors Act 1974 [5–7, 25–27].
  • The defendant’s previous practice of providing final statute bills upon request without litigation did not negate the reasonableness of the claimant’s decision to commence proceedings where no substantive response was received in this instance [22–24].
  • The court found that the claimant’s seven-day deadline in the third pre-action letter was reasonable and proportionate in the context of earlier unanswered requests, and that it constituted sufficient pre-action notice of potential litigation [26–27].
  • The defendant failed to provide any substantive explanation for its objection to the application for a final statute bill after acknowledging service of proceedings, thereby contributing to unnecessary delay and lack of procedural clarity [30–32].
  • The court found no unreasonable conduct on the part of the claimant either before or during proceedings, and therefore applied the default rule under CPR 44.2, awarding the claimant its costs of the application on the standard basis [33, 36].

"... I do not consider the claimant’s conduct during the proceedings to be capable of justifiable criticism either. As I have not found in the defendant’s favour in respect of the claimant’s conduct either before or during the proceedings, the defendant’s final submission – that these proceedings are purely for the pursuit of costs – is an unpromising one."

Background

On 15 November 2018, the claimant, Mr Jonathan Franklin, sustained personal injuries at work and subsequently instructed the defendant, Your Lawyers Limited, to act on his behalf. The claim was successfully settled on 14 December 2020. However, the defendant did not provide a final invoice regarding the costs incurred in bringing the claim. Consequently, the claimant sought legal advice from Mr James Green of JG Solicitors to review the sums charged by the defendant.

On 14 August 2024, Mr Green requested a Final Statute Bill from the defendant, providing an authority document with an electronic signature. The defendant, represented by senior manager Mr Matthew Plemper, requested a handwritten signature. This revised authority was signed and sent by the claimant on 10 September 2024. Despite this, there was no response from the defendant, prompting Mr Green to send a follow-up letter on 15 October 2024. This letter indicated that if the bill was not delivered by 22 October 2024, a Part 8 application pursuant to s68(1) of the Solicitors Act 1974 would be made.

With no response received, the claimant initiated the Part 8 application on 30 October 2024. The Final Statute Bill was eventually delivered by the defendant on 10 December 2024.

The case was initially listed for a directions hearing on 6 January 2025, which was subsequently relisted to 4 February 2025 and then to 20 March 2025, where counsel took over two hours for their submissions, necessitating a reserved judgment.

Costs Issues Before the Court

The court under CPR 44.2 was required to exercise its discretion regarding the award of costs. According to the general rule, “costs follow the event,” implying that the unsuccessful party pays the successful party’s costs. However, the court could make a different order based on the conduct of the parties. The claimant argued for costs to follow the event, whilst the defendant contended for a different order due to purported conduct issues by the claimant.

The Parties’ Positions

Mr Mason, representing the defendant, argued that the claimant’s conduct, prior to and post-commencement of proceedings, warranted a deviation from the general rule. He divided his submissions into three categories:

Pre-Action Conduct:
Mr Mason contended the claimant failed to comply with the Practice Direction – Pre-Action Conduct and Protocols, suggesting the claimant did not indicate that litigation would ensue if requests were ignored.

Commencement of Proceedings:
The defendant claimed that proceedings were initiated as a first resort, contrasting with the solicitation for a “wet ink” signature taking more than a week after signature to be dispatched.

Pursuit of Costs:
Mr Mason suggested that the claimant aimed to pursue costs through litigation rather than genuinely seeking a final statute bill.

Mr Simpson, for the claimant, countered by highlighting that the delays and lack of responses from the defendant justified the commencement of proceedings. He argued the claimant’s attempts to communicate efficiently, and the rational deadlines imposed were in line with typical expectations.

The Court’s Decision

Acting Senior Costs Judge Rowley ruled that the claimant’s conduct was reasonable and did not warrant any deviation from the standard rule that costs follow the event. Judge Rowley pointed out significant points:

Pre-Action Protocol Compliance:
The judge noted that the claimant’s polite and structured correspondence, including the seven-day warning, was sufficient and justified given the defendant’s lack of response. The absence of substantive replies from the defendant did not negate the potential for litigation.

Response Timeliness:
Based on prior evidence from the defendant’s similar case history, it was reasonable to expect that a final statute bill should have been produced within a short timeframe, not the 77 days it eventually took.

Post-Commencement Conduct:
The judge observed that the defendant’s failure to provide clarification during the proceedings, coupled with an uncommunicative approach, did not justify a conduct-based cost order against the claimant.

Given these findings, Acting Senior Costs Judge Rowley concluded that the claimant’s conduct, both before and after the commencement of proceedings, was reasonable and did not exhibit any behaviour warranting a costs penalty. Consequently, he awarded the costs to the claimant, assessing them on the standard basis.

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FRANKLIN V YOUR LAWYERS LIMITED [2025] EWHC 984 (SCCO) | ACTING SENIOR COSTS JUDGE ROWLEY | CPR 44.2 | SECTION 68 SOLICITORS ACT 1974 | FINAL STATUTE BILL | STANDARD BASIS | PRE-ACTION PROTOCOL | PRACTICE DIRECTION – PRE-ACTION CONDUCT AND PROTOCOLS | COSTS FOLLOW THE EVENT | SEVEN DAY LETTER | PART 8 CLAIM | REASONABLE CONDUCT | FAILURE TO RESPOND | ELECTRONIC SIGNATURE AUTHORITY | WET INK SIGNATURE | FAILURE TO DELIVER BILL | STATUTORY BILL REQUEST | DELIVERY OF BILL | COST CONSEQUENCES | TIMEFRAME FOR RESPONSE | UNRESPONSIVE DEFENDANT | SETTLEMENT WITH NO FINAL INVOICE | JG SOLICITORS | MR GREEN WITNESS STATEMENT | MR PLEMPER WITNESS STATEMENT | PAST DEALINGS WITH CLAIMANT’S SOLICITORS | COMPARATIVE ANALYSIS OF RESPONSE TIMES | COMMUNICATION FAILURES | DELAY IN COSTS RESPONSE | INFERENCE FROM NON-COMPLIANCE | COSTS OF APPLICATION | SUCCESSFUL PARTY | NO OTHER ORDER JUSTIFIED | UNREASONABLE REFUSAL TO EXTEND | VAGUE REFERENCES TO NARROWING ISSUES | LITIGATION AS LAST RESORT | MISUSE OF PROTOCOL ARGUMENT | ABSENCE OF S70 CLAIM NOT RELEVANT | COSTS LAW PRINCIPLE | APPROPRIATE USE OF COURT TIME | RELUCTANCE TO COMMUNICATE POSITION | USE OF POLITENESS IN CORRESPONDENCE | IGNORING SOLICITOR CORRESPONDENCE | COSTS DISCRETION