The Senior Courts Costs Office’s decision in HD and others v North Devon Healthcare Trust [2026] EWHC 2009 (SCCO) addresses the enforceability of retainers terminated without good reason, the application of the abuse of process test to detailed assessment proceedings, and the circumstances in which a solicitor may be ordered personally to pay costs on the indemnity basis under CPR 44.11.
Background
The six linked claims at the centre of this judgment arose from alleged failings in the consent process relating to the use of synthetic mesh in the treatment of female pelvic conditions, including urinary stress incontinence. The claimants were among a larger cohort of individuals represented by Mr Darren Hanison, a sole practitioner trading as Fortitude Law, who had been instructed to pursue damages claims against various NHS trusts in England. NHS Resolution was notified of 305 such claims, received letters of claim in approximately 100 of them, and compromised 58 on substantially similar terms, including provision for the payment of reasonable legal costs.
Damages in the six linked claims were duly paid. Mr Hanison commenced detailed assessment proceedings in each, serving signed and certified bills of costs on the relevant defendants. The defendants applied to link the six cases, noting the significant similarities between the bills and the common issues likely to arise in points of dispute. On 7 July 2022, Costs Judge James granted that application, and the linked cases were listed for a five-day hearing to determine seven preliminary issues common to all six bills.
The first hearing was listed for 28 November to 2 December 2022. The judge was unwell on 28 November and the matter stood down. Counsel then acting for the claimants served a skeleton argument late that evening. When the hearing resumed on 29 November, it became apparent that Mr Hanison had not lodged the documents required by paragraph 13.11 of the Practice Direction to CPR Part 47. An attempt had been made to provide a laptop computer to the court late on 28 November, but when the judge examined it on 29 November it was found to contain files relating to only three of the six linked claims. The hearing could not proceed. Costs Judge James adjourned it and ordered the claimants to pay the costs of 28 and 29 November, to be assessed if not agreed. The costs order was made against the claimants, not against Mr Hanison personally, and was on the standard basis by operation of CPR 44.3(4).
The preliminary issues hearing was relisted for 27 to 31 March 2023. Costs Judge James heard submissions on all issues, gave judgment on some, reserved others, and provided a reserved judgment on 13 April 2023. A third hearing took place on 17 April 2023 to deal with the remaining preliminary issues. That was the last substantive activity in the detailed assessment proceedings.
On 18 May 2023, the Solicitors Regulation Authority intervened into Mr Hanison’s practice on grounds including suspected dishonesty and failure to comply with regulatory rules. Fortitude Law ceased to trade. Lester Aldridge was appointed as the SRA’s intervening agent. DAC Beachcroft LLP, acting for the defendants, wrote to each of the claimants suggesting they obtain independent legal advice in relation to the costs process. Some appear to have done so, but none engaged actively or to any significant extent in the costs proceedings thereafter.
Disciplinary proceedings were commenced against Mr Hanison on 14 May 2025, leading to a hearing before the Solicitors Disciplinary Tribunal on 24 February 2026. Mr Hanison faced 17 allegations of professional misconduct. He admitted many, including allegations of dishonesty. The SDT found several other allegations of dishonesty proved on the balance of probabilities and, by a written judgment dated 12 March 2026, ordered that he be struck off the Roll of Solicitors.
Mr Hanison was not formally removed from the court record as solicitor for the claimants in the six linked claims until an order of Senior Costs Judge Rowley dated 10 June 2025. From the conclusion of the third hearing before Costs Judge James on 31 March 2023 until the application considered in this judgment, nothing of substance had occurred in the detailed assessment proceedings. No new solicitors came on the record for any of the claimants. None of the other claimants in the wider cohort had commenced detailed assessment proceedings at all.
On 12 December 2025, the defendants issued an application seeking, among other things, a declaration that the retainers and conditional fee agreements between the claimants and Mr Hanison were unenforceable, strike out of the bills of costs and detailed assessment proceedings, repayment by Mr Hanison of payments on account totalling £92,000, an unless order against the wider cohort of claimants who had not commenced detailed assessment proceedings, and orders that Mr Hanison pay the defendants’ costs of the abortive November 2022 hearing and of the detailed assessment proceedings as a whole, on the indemnity basis. The application was supported by witness statements from Mr Mark Ashley and Mr Myles Mundill of DAC Beachcroft. The hearing took place on 3 July 2026 before Costs Judge Joseph. Neither the claimants nor Mr Hanison appeared or were represented.
Service and Joinder of Mr Hanison
After the hearing on 3 July 2026, Costs Judge Joseph raised of his own motion the question of whether Mr Hanison had been properly served with the evidence in support of the application. The judge was also concerned that Mr Hanison, having been removed from the court record by Senior Costs Judge Rowley’s order of 10 June 2025, was not at that moment a party to the action nor representing a party in it. The judge raised these matters with counsel in correspondence following the hearing.
That correspondence generated a further application by the defendants to join Mr Hanison as a party to the action. A further witness statement signed by Mr Mundill was filed in which evidence was given that Mr Hanison had in fact been served, prior to the hearing on 3 July, with the evidence in support of the application. The judge was satisfied that Mr Hanison had been served with the evidence prior to the hearing but considered it appropriate for him to be joined formally into the action for the purposes of the defendants’ application.
On 13 July 2026, the judge made an order to that effect which included various directions requiring service on Mr Hanison of the latest application and the evidence in support of it. As that order was made without a hearing, it included the usual paragraph that any party affected by the order could apply to vary it, stay it or set it aside within seven days of receipt of it. The order also stated that if no application was made within that time, the court would proceed to determine the application dated 12 December 2025 without further submissions. No party applied to vary, set aside or stay that order within the time stipulated. The judge was satisfied that Mr Hanison had had every reasonable opportunity to respond to the application and to make any submissions he might have wished to make.
Enforceability of the Retainers
Costs Judge Joseph began by considering whether the retainers between the claimants and Mr Hanison had been terminated without good reason and were accordingly unenforceable. The claimant HD had waived privilege over her conditional fee agreement following advice from new solicitors. The CFA, exhibited to Mr Ashley’s witness statement, was in fairly standard terms and had been signed by Mr Hanison on 26 September 2018. It expressly covered negotiations about, or a court assessment of, the costs of the claim.
The judge accepted the defendants’ submission that the retainer was an entire contract. Relying on Re Underwood & Piper v Lewis [1894] 2 QB 306, the judge noted that a solicitor’s retainer in an action is ordinarily an entire contract to conduct the action to the end, and that a solicitor cannot sue for costs until the contract has been entirely fulfilled. The retainer with HD plainly encompassed not only negotiations with the defendant about recoverable costs but also, if required, preparation for and attendance at a detailed assessment hearing. Agreement or court assessment of recoverable costs was an express and necessary step required by the retainer.
The judge found that Mr Hanison’s contractual obligations included the obligation to obtain agreement, or a court assessment, of HD’s recoverable costs. Although that process had been started, it had by no means concluded. Following the intervention into Mr Hanison’s practice, there was now no prospect at all of him ever completing his obligations under the retainer. The passage of a very considerable period of time in which no activity at all had occurred supported the inference that he had evinced no intention of so doing. The judge concluded that the retainer between HD and Mr Hanison was unenforceable by Mr Hanison against HD.
The judge inferred that the terms of the retainers between the rest of the claimants in the six linked claims were on the same, or substantially similar terms. The retainer between Mr Hanison and HD was in relatively standard terms. There was no reason to believe that Mr Hanison would have concluded retainers with the other claimants on materially different terms. Had that been the case, it had been open to Mr Hanison to adduce appropriate evidence establishing it. He had not done so. The judge concluded that the retainers between each of the claimants in the six linked claims were unenforceable by Mr Hanison against any of those claimants.
Strike Out for Abuse of Process
The judge then considered whether the bills of costs and detailed assessment proceedings should be struck out, either as a consequence of the unenforceability of the retainers or on the separate ground of abuse of process under CPR 3.4(2)(b). If the retainers were unenforceable, the claimants had no liability to their solicitor for any costs incurred pursuant to those retainers. If they had no such liability, there could be no claim by those claimants against the defendants for any of those costs. Any other conclusion would amount to a breach of the indemnity principle. The further consequence must be that the detailed assessment proceedings had to be struck out, or alternatively that the bills of costs must be assessed at nil.
The judge nevertheless addressed the separate arguments for strike out based on abuse of process. The defendants relied on the two-stage framework in Asturion Fondation v Alibrahim [2020] EWCA Civ 32. At the first stage, the court considers whether the claimant has deliberately allowed the proceedings to become dormant, and if so why. That involves examining the claimant’s intention, to be inferred from the evidence as a whole. The court must assess objectively the strength of any explanation advanced, having regard to the length of the period of inactivity. Prolonged inactivity may itself support the inference that a claimant does not intend to advance the action. Where such stagnation is established, the burden shifts to the claimant to explain why the claim should be permitted to continue.
The judge had no evidence from Mr Hanison. He had been given the opportunity to give evidence and make submissions and had elected not to do so. The claimants in the six linked claims had also had a similar opportunity and had not taken it. No explanation had been given, let alone a credible one. The costs proceedings of the claimants in the six linked claims had been deliberately allowed to become dormant. The extensive and wholly unexplained delay offended against the integrity of the court’s process. The serious abuse of the court’s process had been perpetrated by Mr Hanison, the solicitor and officer of the court whom the claimants in the six linked claims trusted to pursue their claims for costs.
The judge also found that there was now no realistic prospect of any of the detailed assessments in any of the six linked claims being pursued. In addition, there was significant prejudice to the defendants. They had made payments on account of costs in relation to six sets of detailed assessment proceedings. If the detailed assessment proceedings were allowed to remain extant, the defendants presently had no way of knowing when they would be resolved, nor for how much they might be liable. The judge accepted that the failure by the claimants in the six linked claims to take any steps at all since the last hearing before Costs Judge James was, in all the circumstances, a serious abuse of the process of the court.
At the second stage of the enquiry, the court considers whether striking out the claim is a proportionate response to the abuse. The defendants had put forward a possible alternative to strike out, namely an unless order against the claimants in the six linked claims to the effect that if they did not request a substantive detailed assessment hearing within 14 days, their claims should be struck out. The judge concluded that if such a course were a realistic option the claimants would have appeared on the hearing of the defendants’ application to make submissions to that or similar effect. The fact that they had not done so indicated that they had no such intentions. In all the circumstances, the judge did not consider that any useful purpose would or could be served by delaying the strike out of the claims by the claimants in the six linked claims for any further period of time. Immediate strike out was not only the proportionate response to the current state of affairs, but was the only realistic option, in order to do justice between the parties. It would be seriously unfair to the defendants to prolong these matters any further.
Repayment of Payments on Account
The judge dealt with the application for repayment of payments on account relatively shortly in the light of the findings and decisions already made. Now that the detailed assessment proceedings in the six linked claims had been struck out and the retainers between Mr Hanison and the claimants declared to be unenforceable, the case for the return of monies paid to Mr Hanison on account of the costs of the claimants was unanswerable. The payments on account were made on the footing that there were enforceable retainers in existence between the receiving parties and their solicitor. It would, to all intents and purposes, constitute a breach of the indemnity principle for those payments to be retained. There were orders against Mr Hanison for the repayment of all of the payments on account of costs which the defendants had made to him in the six linked claims.
Unless Order Against the Wider Cohort
No action at all had been taken by any of the other claimants in the cohort of claims against the various defendants to progress their respective claims for costs. The defendants had applied for an unless order against those claimants under CPR 47.8. None of the claimants to which this part of the application was directed had been involved in the detailed assessment proceedings commenced by the claimants in the six linked claims. Given that, it was appropriate that those claimants should be given an opportunity, if they so wished, to commence detailed assessment proceedings. The orders for costs in favour of those claimants were made a considerable time ago. It was appropriate for the court to exercise its discretion under CPR 47.8. The power to make an unless order is discretionary. The judge considered it right that the claimants should now be placed under the unless sanction. There was an unless order against those claimants that they should commence detailed assessment proceedings in respect of their costs within 28 days, failing which all of the costs to which they would otherwise be entitled would be disallowed.
Costs Orders Against Mr Hanison Under CPR 44.11
The defendants sought orders that Mr Hanison pay the costs of the abortive hearing on 28 and 29 November 2022 and the costs of the detailed assessment proceedings as a whole, on the indemnity basis. The order made by Costs Judge James on 29 November 2022 had been against the claimants in the six linked claims, not against Mr Hanison. The application now made was for something quite different, namely an order against Mr Hanison personally.
The defendants framed their case pursuant to CPR 44.11, which provides that the court may make an order where a party or that party’s legal representative, in connection with a summary or detailed assessment, fails to comply with a rule, practice direction or court order, or where it appears to the court that the conduct of a party or that party’s legal representative, before or during the proceedings, or in the assessment proceedings, was unreasonable or improper. Where those conditions apply, the court may disallow all or part of the costs which are being assessed, or order the party at fault or that party’s legal representative to pay costs which that party or legal representative has caused any other party to incur.
In relation to CPR 44.11(1)(a), the defendants relied upon various defaults perpetrated in the course of the detailed assessment proceedings by Mr Hanison. They pointed to the failure prior to the first hearing before Costs Judge James to lodge at court those documents which were required to have been lodged prior to the hearing pursuant to paragraph 13.11 of the Practice Direction to CPR Part 47. They also relied on the fact that the failure to lodge the requisite documents was compounded by the attempt to provide documents to the court by means of a laptop computer which, in fact, did not contain the requisite documents.
In relation to CPR 44.11(1)(b), the defendants submitted that the conduct of Mr Hanison throughout the detailed assessment proceedings had been unreasonable. Their main complaint was the substantial delay which had occurred following the last hearing before Costs Judge James. They also pointed to the various rulings which were made by Costs Judge James on the preliminary issues which they said demonstrated that very high and unsustainable claims for costs were made in respect of certain items in the bills of costs. By way of some examples, in respect of the letter of claim sent on behalf of HD, 63.3 hours were claimed, but only 15 hours were allowed. In respect of the letter of response, 66.1 hours were claimed but only 10 hours were allowed and, in respect of the Schedule of Loss, 31.3 hours were claimed but only 7.9 hours were allowed, of which one hour only was at grade A and the rest at grade D.
The judge noted that Costs Judge James had very considerable concerns about the claims for costs which had been made. He shared those concerns. The reductions in the claims on the preliminary issues were substantial, as well as being reductions which one would not normally expect to see in claims for costs of this nature. Of further concern was the fact that Mr Hanison had, to all intents and purposes, abandoned the detailed assessments.
The leading case on the operation of CPR 44.11 is Gempride Ltd v Bamrah [2018] EWCA Civ 1367. Mistakes or negligence, without more, are insufficient to engage the rule. Unreasonable conduct is essentially conduct permitting of no reasonable explanation. In order for the conduct of a legal representative to be unreasonable, that conduct must also breach the legal representative’s duty to the court. The burden of proof is on the applicant and even when the threshold criteria are satisfied, the court still has a discretion as to whether an order ought to be made. Any order made must be proportionate to the misconduct.
The hearings on 28 and 29 November 2022 were wholly ineffective due to the fact that the legal representative for the claimants in the six linked claims had failed to lodge at court prior to the hearing the necessary documents to enable the detailed assessment hearing to proceed effectively. There could be no doubt that a solicitor on the record has the responsibility for lodging those documents and for complying with the requisite practice direction. The judge was satisfied that Mr Hanison was seriously in breach of his duties to the court. That conduct was unreasonable and there was no reasonable explanation for it.
Mr Hanison was not removed from the court record until the order of 10 June 2025 of Senior Costs Judge Rowley. Until that point, he had sole responsibility for the conduct of the detailed assessments on behalf of the claimants in the six linked claims. It is a fundamental obligation on the part of a solicitor that unless and until he is removed from the record, he must act in the matter. This is apparent from CPR 42.2(5) which contains the presumption that a solicitor on the record is acting until the conclusion of the matter. That is the case even if the retainer has been terminated.
Since the last hearing before Costs Judge James, nothing of any substance had occurred. The judge had found that there had been a serious abuse of the process of the court in that respect. It followed from that finding that the conduct of the person who was responsible for that delay was itself unreasonable. There had been no explanation given for it.
The judge found that both CPR 44.11(a) and (b) were engaged. The costs to which the claimants in the six linked claims would otherwise have been entitled had already been disallowed. The defendants’ application invited the court to order Mr Hanison to pay the defendants’ costs of the hearing on 28 and 29 November 2022, and of the detailed assessments as a whole.
The judge had no hesitation in concluding that Mr Hanison should pay the costs of the hearing on 28 and 29 November 2022. His various defaults amounted to conduct which was unreasonable and which, on any analysis, caused the hearing to have to be abandoned. It could hardly be controversial or unsurprising that a solicitor on the record who conducts himself in such a way should end up being ordered to pay the costs of the abortive hearing.
In relation to the rest of the costs of the detailed assessments, the judge reached the same decision. The various significant and substantial reductions in those parts of the bill which were assessed by Costs Judge James on the preliminary issues indicated an attempt to claim very much more than could ever have been allowed on a standard basis assessment. As Mr Hanison had not responded to the defendants’ allegations in this respect, the judge had to proceed with there being no explanation at all as to why and on what basis such high amounts were claimed. The making of a claim for costs, and the signing of a bill of costs which makes very high and unsustainable claims for costs, is itself unreasonable. On that basis, Mr Hanison’s unreasonable behaviour started at the very outset of the detailed assessment proceedings by the signing of the bills. Detailed assessment proceedings are started by the service of a Notice of Commencement and a signed and certified bill (CPR 47.6).
Since the hearings before Costs Judge James, nothing had happened. Mr Hanison had abandoned them and his clients. The judge had found that such conduct amounted to a serious abuse of the court’s process. Nothing of any value had been achieved by them due to the failure of the solicitor on the record to fulfil his obligations and duties to the court.
Indemnity or Standard Basis?
The defendants contended that the costs for which Mr Hanison was liable should be paid on the indemnity basis. The indemnity basis differs from the standard basis in two respects. First, the onus of showing that costs have not been reasonably incurred or are not reasonable in amount is on the paying party. Secondly, there is no requirement of proportionality. See CPR 44.3 and Excelsior Commercial and Industrial Holdings Limited v Salisbury Hannah Aspden and Johnson [2002] EWCA Civ 879.
The criteria for the making of an indemnity costs order have been considered many times. In the very recent case of Breeze v Chief Constable of Norfolk Constabulary [2026] EWHC 1937 (KB), Cotter J set out in some detail the various important rules and decisions on the issue. One of the circumstances in which an indemnity order may be made is where there has been an abuse of the court’s procedure. In Three Rivers DC v Bank of England [2006] EWHC 816 (Comm), Tomlinson J identified the relevant principles. It was emphasised that the court should have regard to all the circumstances of the case and that the discretion to award indemnity costs is very wide.
The critical requirement, before an indemnity order can be made, is that there must be some conduct or some circumstance which takes the case out of the norm. That was emphasised by Christopher Clarke J in Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2531 (Comm) who, having adopted Tomlinson J’s summary in Three Rivers, and noting that an order for indemnity costs was itself a departure from the norm, said that it is important not to lose sight of the essential requirement of unreasonable or inappropriate conduct overall and not to treat examples of such which may amount to such conduct as necessarily constituting it.
In relation to the hearing on 28 and 29 November 2022, Mr Hanison failed to lodge the necessary papers to enable the hearing to proceed. He provided a laptop computer at the end of the first day which did not contain the necessary documents, and which meant that Costs Judge James had no choice but to abandon the hearing. He thereby wasted significant court time and resources in addition to causing the defendants to expend significant resources which ultimately were wasted. The judge was satisfied that the conduct of Mr Hanison in relation to the hearing on 28 and 29 November 2022 was unreasonable to a high degree such that the case was taken out of the norm. An indemnity costs order in respect of those costs was the appropriate response.
In addition, Mr Hanison had abandoned the detailed assessment proceedings. The result of the findings and decisions which the judge had made was that those detailed assessment proceedings had themselves achieved nothing and that the defendants again had been required to expend considerable time, effort and resources in what had been for all concerned a fruitless and wasteful exercise. Mr Hanison had failed to fulfil his duties to the court in his capacity as the solicitor for the claimants in the six linked claims and as an officer of the court. His conduct was well outside the norm. Taking all the circumstances of this case into account, it was appropriate that Mr Hanison should pay the costs of the detailed assessment proceedings in the six linked claims on the indemnity basis.
Costs of the Application
The defendants’ application had been successful. The general rule under CPR 44.2 is that the unsuccessful party will be ordered to pay the costs of the successful party. Whilst the court has a discretion to make a different order, the judge could see no reason at all to depart from the usual rule in this case. Again, indemnity costs were sought and for the same reasons as were given above, it was appropriate that an indemnity order should be made.
Undertakings
At the hearing on 3 July 2026, the judge expressed a concern that, notwithstanding the application now being made by the defendants, the defendants might still have the right to pursue the claimants in the six linked claims personally in respect of the costs which the defendants had incurred in these detailed assessment proceedings. The judge enquired whether the defendants might be prepared to provide the court and those claimants with appropriate undertakings not to do so. In making that enquiry the judge made it clear that the court had no right to require any such undertakings to be given, and that whatever judgment might be reached on the defendants’ application would in no way be conditional upon such undertakings being given. Mr Ashley gave appropriate undertakings dated 31 July 2026 on behalf of his clients.
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