David Wyld & Co, Solicitors v Dadourian & Anor

Interim bills may be final statutory bills for the work they cover. The question depends on the retainer, the terms and presentation of the bills, any identifiable natural break, and the client’s response. A solicitor may sue on such a bill and the statutory time limits for assessment may apply.

A residual discretion to order assessment after payment, judgment or expiry of the statutory period requires special circumstances or other proper justification. A fee reduction or waiver is not necessarily a conditional fee agreement. An adjournment remains a discretionary case-management decision, assessed by reference to fairness, the overriding objective, the evidence available, and the real need for further time.

The claimant solicitors acted for the defendants in complex High Court and Court of Appeal litigation. They sued for unpaid fees under two bills delivered in December 2009. The defendants sought detailed assessment of all the bills and alleged that the bills were merely interim requests for payment on account. They also argued that counsel’s fees arose under an unenforceable oral conditional fee agreement.

Master Roberts refused an adjournment, dismissed the assessment application and entered summary judgment under CPR 24. The defendants appealed and applied out of time to set aside the orders because of their non-attendance. The central issues were the status of the bills, the enforceability of the alleged fee arrangement, and the refusal to adjourn.

1. Disposition. Permission to appeal was refused on all grounds. The application to set aside Master Roberts’s orders was dismissed.
2. Status of the bills. The retainer expressly provided that bills would be final accounts for work done during the relevant period unless marked as interim bills. The two bills were headed as professional charges, identified discrete periods and categories of work, and followed a natural break between the Court of Appeal proceedings and the later petition to the House of Lords. Earlier bills had been paid without demur. Applying the principles discussed in Abedi v Penningtons, Davidsons v Jones-Fenleigh and In re Romer and Haslam, the bills were final statutory bills, not requests for payment on account.
3. The defendants were outside the ordinary statutory period for seeking assessment of the earlier paid bills. No reasons justified exercising the residual discretion to order assessment. The allegations of negligence were unparticularised or hopeless. There was therefore no real prospect of defending the claim or obtaining a detailed assessment.
4. Conditional fees. Section 58 of the Courts and Legal Services Act 1990 concerns agreements under which advocacy or litigation fees are payable only in specified circumstances and requires writing. The contemporaneous correspondence showed an obligation to pay counsel’s fees, subject to a later concession or discount. It did not establish an oral conditional fee agreement. The argument therefore had no real prospect of success.
5. Adjournment. The refusal was within the Master’s discretion under CPR 3.1(2)(b) and the overriding objective. Relevant considerations included the previous adjournment, the absence of evidence indicating when the defendants could attend, the lack of a formal application, the time available to obtain representation, and the detailed witness statements and skeleton argument already filed. The decision fell well within the range of legitimate discretionary case management.

• High Court (Queen’s Bench Division): On appeal from Master Roberts’s orders of 23 November 2010, permission to appeal was refused and the application to set aside the orders was dismissed.