Ashfakul Bari v Arnold Rosen (t/a Ra Rosen And Co Solicitors)

A solicitor may issue an interim statute bill during an entire retainer only under an effective contractual agreement or at a natural break in the work. The bill must be complete and self-contained for the work covered.

Ambiguous terms drafted by the solicitor are construed against the solicitor. A promise that bills may be assessed “at any time” may be incompatible with interim statute bills because statutory assessment rights diminish with time.

Requests for payment on account may form a series culminating in a final statute bill. The whole series may then be assessed as one bill. Whether special circumstances justify a late assessment is a fact-sensitive value judgment with which an appellate court should interfere only in a strong case.

The claimant instructed the defendant solicitor under a general retainer covering several matters. The solicitor rendered and received payment of 12 bills during the retainer, followed by a final bill after termination. The claimant sought detailed assessment of the final bill and later obtained permission from Master Leonard to include the earlier bills.

The Master held that the retainer did not authorise interim statute bills. He treated the earlier bills as requests for payment on account forming a single series with the final statute bill. He also found special circumstances justifying assessment outside the one-month period under the Solicitors Act 1974.

The solicitor appealed on each issue. The central questions were whether the Master’s construction of the retainer, treatment of the series of bills, and exercise of the special-circumstances discretion were wrong.

1. The appeal was dismissed on all three issues. Under rule 52.11 of the Civil Procedure Rules 1998, the appeal was a review of the Master’s decision. The question was whether that decision had been shown to be wrong.

2. The Master was entitled to find that the retainer did not authorise interim statute bills. A solicitor’s retainer is normally an entire contract, so remuneration becomes due only when the work is complete or the retainer ends. Interim statute bills may arise by agreement or at a natural break. They must be complete and self-contained for the work covered. No natural break occurred here.

   The retainer’s promise that the client could obtain assessment “at any time” conflicted with the diminishing rights imposed by section 70 of the Solicitors Act 1974. Other expressions in the letter created further ambiguity. The Master properly attempted to reconcile the terms before construing the ambiguity against the solicitor. The earlier bills were therefore requests for payment on account. The availability of possible discretionary relief from a time limit did not alter the proper construction of the retainer.

3. The Master correctly treated the requests for payment on account and the final statute bill as a single series. Applying Chamberlain v Boodle and King [1982] 1 WLR 1443, individually incomplete or non-statutory bills may form part of a complete series culminating in a final statute bill. The bills had a sufficient nexus: they arose under a general retainer, were rendered within nine months, and partly overlapped. The whole series could therefore be assessed as one bill.

4. The Master was plainly entitled to find special circumstances under section 70(3). The claimant had paid the final bill under protest to obtain papers needed to conclude litigation and substantiate a costs claim. After release, the records did not enable him to justify recovery of costs approaching the amount charged or to identify the allocation of charges between matters. The parties had also linked the reasonableness of the solicitor’s charges to the costs recoverable in the related claim. Although the application could have been made earlier, the circumstances remained significant and the delay caused no apparent prejudice.

5. The defendant was ordered to pay the appeal costs, with assessment deferred to the detailed assessment of the bills. He was also ordered to pay £12,000 on account of costs.

1. High Court (Queen’s Bench Division): The solicitor’s appeal was dismissed on all issues: [2012] EWHC 1782 (QB).

2. Master Leonard: The Master permitted the client’s detailed-assessment claim to include the earlier bills. He held that they were requests for payment on account forming a series with the final statute bill and that special circumstances justified assessment outside the one-month period.