Darya Belsner v Cam Legal Services Limited

Work undertaken through a pre-action online portal is non-contentious business unless court proceedings are begun. Accordingly, section 74(3) of the Solicitors Act 1974 and CPR Part 46.9(2) do not govern a solicitor’s charges for an RTA portal claim settled before proceedings.

A solicitor does not owe a fiduciary duty of undivided loyalty when negotiating the solicitor’s own retainer. Professional duties nevertheless require clear information about likely overall cost, including material fixed recoverable costs. For non-contentious business, the decisive assessment is whether the total bill is fair and reasonable in all the circumstances under the Solicitors’ (Non-Contentious Business) Remuneration Order 2009.

The client instructed the solicitors under a conditional fee agreement to pursue a modest road traffic accident claim through the RTA portal. The claim settled at stage 2. The insurer paid damages, fixed costs and disbursements. The solicitors retained the fixed costs and deducted a capped success fee from the client’s damages.

District Judge Bellamy assessed the solicitors’ bill. On the client’s appeal, Lavender J allowed only the fixed costs and a reduced success fee: [2020] EWHC 2755 (QB). The solicitors appealed. The central issues were whether the county-court costs protection applied before proceedings, whether informed consent was required for the retainer, whether its excess-costs term was unfair, and the proper reassessment basis.

1. Appeal allowed unanimously. The RTA portal claim was non-contentious business because no court proceedings had begun. Section 74(3) of the Solicitors Act 1974 applies to items relating to county court proceedings and CPR Part 46.9(2) cannot enlarge that statutory scope. An updating construction could not include claims which the statutory language excluded. Lavender J’s contrary premise was wrong.
2. The solicitors owed fiduciary duties when acting on the RTA claim, but not a duty of undivided loyalty in negotiating their own CFA or retainer. A client cannot reasonably expect a solicitor to negotiate the solicitor’s remuneration solely in the client’s interests. The solicitors remained subject to statutory and professional obligations, which are distinct from fiduciary duties.
3. The solicitors failed to comply with the SRA Code of Conduct. They gave estimates of damages and their own base costs, but did not disclose the fixed recoverable costs payable if the claim settled in the portal. That information was necessary for the client to receive the best possible pricing information and to make an informed decision. Those professional breaches did not create the fiduciary informed-consent requirement adopted below.
4. The alleged unfairness under section 62(4) of the Consumer Rights Act 2015 depended on the supposed removal of protection under section 74(3). Since that protection did not apply, the term permitting charges above recoverable costs was not unfair.
5. The bill had to be reassessed under paragraph 3 of the Solicitors’ (Non-Contentious Business) Remuneration Order 2009. The question was the fair and reasonable total amount for the client to pay, not a mechanical separation of base costs and success fee. Despite the inadequate information, £821.25 plus VAT was fair and reasonable. The client was ordered to repay £295.50 to the solicitors. The court added obiter criticism of the outdated distinction between contentious and non-contentious business and the present portal-costs regime.

• Court of Appeal (Civil Division): allowed the solicitors’ appeal and reassessed the bill at £821.25 plus VAT.
• High Court, Queen’s Bench Division: Lavender J allowed the client’s appeal and limited the solicitors to fixed costs plus a reduced success fee: [2020] EWHC 2755 (QB). That order was reversed.
• Sheffield District Registry: District Judge Bellamy assessed the solicitors’ bill and permitted the amount that the solicitors had actually charged.