BIGGAR V HOWARD KENNEDY LLP [2026] EWHC 132 (SCCO)

A solicitor’s failure to provide adequate cost estimates will not establish special circumstances under section 70(3) where the client’s conduct demonstrates they would have made the same choices regardless. The test is whether better information would have led to different decisions.

• For the purposes of section 70 of the Solicitors Act 1974, a bill is “paid” when there is an agreement to the sum taken in payment, which may be inferred from the client’s conduct in making payments against the outstanding balance of bills rendered, without requiring specific agreement to the allocation of each payment to a particular invoice. [63, 66-67]
• The existence of “special circumstances” justifying an assessment of a solicitor’s bill out of time is determined by comparing the case to the ordinary run of cases to see if it is out of the ordinary course and calls for an explanation or further scrutiny. [45, 47]
• A client’s failure to challenge a solicitor’s bills for a prolonged period, while continuing to instruct the solicitor and never expressing dissatisfaction with the amounts charged, is a powerful factor weighing against a finding of special circumstances. [59-60, 79]
• A preliminary estimate of costs for initial work that is subsequently exceeded does not, of itself, constitute a special circumstance when it is expressly provisional and is quickly superseded by the client’s subsequent conduct demonstrating an understanding of the likely scale of costs for the full matter. [69-70, 77]
• Where a client, with full knowledge of accruing costs, demonstrates a clear preference to continue instructing a particular solicitor despite the cost, the court is unlikely to find that a lack of updated estimates constitutes a special circumstance, as the client has not lost a real opportunity to make different choices. [73, 75-76]