EMW Law LLP v Halborg

A solicitor’s cause of action for recovery or assessment of costs arises when the work is done. Delivery of a compliant bill under sections 69 and 70 of the Solicitors Act 1974 is a procedural requirement, not a condition of the cause of action.

A limited liability partnership acting through its own solicitor is a corporation acting with a legal representative, not a litigant in person. The restrictions in CPR 46.5 therefore do not apply.

EMW Law LLP appealed two orders of Master Campbell in the Senior Courts Costs Office. The first appeal concerned whether EMW’s claim for assessment of solicitors’ costs should be struck out, including arguments about the absence of a compliant bill, overlapping proceedings and implied terms in a conditional fee agreement.

The second appeal concerned whether EMW, a limited liability partnership acting through its own solicitor, was a litigant in person for the purpose of recovering costs under CPR 46.5.

1. First appeal dismissed. The SCCO claim was intelligible despite defects and ambitious pleading. It did not seek damages for breach of contract, while the separate Chancery claim did not seek an assessment under section 70 of the Solicitors Act 1974. The overlap did not justify striking out the SCCO claim.
2. Sections 69 and 70 of the Solicitors Act 1974 impose procedural requirements. Following Edginton v Sekon [2012] EWCA Civ 1812, applying Coburn v Colledge [1897] 1 QB 702, the cause of action arises when the work is done. Proceedings may be commenced before delivery of a proper bill, although they may be stayed pending delivery.
3. The pleaded implied terms were arguable when confined to Mr Halborg and to global costs recoveries. The conditional fee agreement did not explain how EMW’s fees were to be calculated where recovery did not distinguish between the parties’ costs. It was also arguable that Mr Halborg could not rely on non-fulfilment of the condition precedent if he had prevented EMW from pursuing its costs.
4. Second appeal dismissed. Under CPR 46.5(6)(a), a corporation acting with a legal representative is not a litigant in person. CPR 46.5(6)(b)(v) concerns a natural person authorised to conduct litigation who acts in person. A limited liability partnership therefore falls within paragraph (6)(a) and may recover its full profit costs.

• High Court (Chancery Division): appeals from Master Campbell’s orders dated 24 October and 24 November 2014 dismissed.