Robinson v EMW Law LLP

A receiving party represented by solicitors is presumed liable to those solicitors for their costs, unless an express or implied agreement establishes that the party will not be liable in any circumstances. The absence of a written retainer, or the fact that a written retainer is not retrospective, does not displace that presumption.

The standard-basis benefit of the doubt applies when assessing the reasonableness and proportionality of costs. It does not determine whether any liability to the receiving party’s solicitors exists. A solicitor who conducts work in his or her own case may recover reasonable costs for measurable professional skill and labour, even where the solicitor is not acting in person and has no separate liability to pay another solicitor for that work.

Christopher Ian Robinson appealed from preliminary rulings by Master James in a detailed costs assessment. Mr Robinson had obtained bankruptcy-related injunctive relief against his former firm, EMW Law LLP, and EMW was ordered to pay 80% of his costs.

Fidelity Law Ltd acted for Mr Robinson and was on the record from the outset. A written confirmation of instructions was produced on 1 May 2015. The costs judge disallowed Fidelity’s costs before that date and all sums claimed for work performed personally by Mr Robinson.

The appeal concerned whether Mr Robinson was liable to Fidelity for costs incurred before the written confirmation, and whether he could recover reasonable costs for his own professional work under the Chorley principle.

1. Liability to solicitors. The appeal was allowed on the issue of Fidelity’s costs. The relevant questions were whether Fidelity acted for Mr Robinson as his solicitors and whether it was agreed that he would not be liable for their costs in any circumstances. Fidelity was on the record for Mr Robinson from the beginning, so the first question was satisfied.
2. The second question attracts a presumption of liability. An express or implied agreement may rebut it, but the receiving party does not have to prove affirmatively that an agreement to pay existed. The written confirmation dated 1 May 2015 was not contractually retrospective, but that did not establish any agreement that earlier costs would not be payable.
3. The costs judge therefore erred in treating doubt about an implied retainer as determinative and in giving the paying party the benefit of the doubt. That approach belongs to the assessment of reasonableness and proportionality under CPR rule 44.3, not to the anterior question whether liability for costs exists. The factual finding that Mr Robinson’s own time would not be charged was upheld. The presumption consequently applied to Fidelity’s other costs, including Mr Brown’s work.
4. Mr Robinson’s own work. The Chorley principle is not confined to a solicitor acting formally in person, or to a partner or member of the firm conducting the litigation. Its pragmatic rationale applies where a solicitor instructs another firm but performs part of the work personally. The relevant considerations are the expenditure of measurable professional skill and labour and the saving of work which would otherwise have been undertaken by the instructed firm.
5. Mr Robinson could therefore recover reasonable costs for work properly performed by him as a solicitor. The recoverable rate was the reasonable rate for litigation services carried out instead of by Fidelity, not the rate under his consultancy agreement. The detailed assessment of the items and grades of work was left for agreement or, if necessary, further assessment.

• High Court (Chancery Division) — On appeal, Roth J allowed the appeal against Master James’s preliminary costs ruling and directed that the consequences for the detailed assessment be addressed in light of the judgment.
• Senior Costs Office — Master James had disallowed Fidelity’s costs before 1 May 2015 and all costs claimed for Mr Robinson’s own work.