Yvia Pulford v Hughes Fowler Carruthers Limited

On a solicitor-and-client assessment, failure to provide an adequate estimate, or failure to obtain specific advance approval for particular costs, does not automatically make the costs irrecoverable. The court must assess whether the work and disbursements were reasonably incurred under the retainer and reasonable in amount.

Where the solicitor failed to provide adequate costs information and the client would probably have paid less if properly informed, the court may limit recovery to the sum it is reasonable for the client to pay. It is sufficient that the failure deprived the client of an opportunity to act differently, although that factor may carry less weight where the client’s alternative conduct is speculative.

The claimant sought detailed assessment of bills totalling approximately £300,569 rendered by the defendant solicitors for divorce and ancillary-relief proceedings. The preliminary issues concerned the alleged £80,000 estimate, the adequacy of costs information, informed authorisation, responsibility for counsel’s fees, increased hourly rates and the alleged assurance that the claimant would not ultimately bear the costs.

The claimant also challenged the instruction of leading and junior counsel and the continued involvement of two partners. The court assessed the evidence, the retainer and the operation of CPR 46.9.

1. Costs estimates. The alleged £80,000 estimate was not given. Even if costs information had been inadequate, that would not itself make the defendant’s costs irrecoverable. A contractual or professional failure to provide estimates may give rise to a claim for loss caused by the breach, but the solicitor may still recover a reasonable fee for work reasonably undertaken (paras [42]–[50]).
2. Possible limitation of recovery. Where no adequate estimate was provided, and the client would have paid less if properly informed, the court may limit recovery to the amount it is reasonable in all the circumstances for the client to pay. Proof that the client would probably have taken a more advantageous course is unnecessary; loss of an opportunity to act differently may suffice, though speculative evidence carries less weight (paras [49]–[51]). The claimant failed to establish that any better information would have materially affected her decisions (paras [90]–[109]).
3. Informed authorisation. Under CPR 46.9(3), express or implied client approval raises presumptions concerning reasonable incurrence and amount. Lack of specific advance authority for every fee or disbursement does not make the item irrecoverable. The question remains whether it was reasonably incurred and reasonable in amount (paras [39]–[45], [128]–[131]).
4. Counsel’s fees. The claimant authorised and selected leading counsel. The additional costs were therefore presumed reasonably incurred, and the instruction of leading and junior counsel was not unusual in proceedings of this scale and complexity. The fees were not limited to hypothetical junior-counsel fees, but remained subject to fee-by-fee assessment (paras [132]–[134], [147]–[148]).
5. Retainer and rates. The claimant signed the client-care letter, received the terms and conditions, and remained personally liable for the defendant’s fees and disbursements. The terms permitted the increase in Ms Hughes’s hourly rate. No assurance was given that the claimant would never bear the costs, or that Ms Hughes’s continuing involvement would be minimal (paras [112]–[127], [135]–[141]).
6. The preliminary objections were rejected, subject to the outstanding fee-by-fee assessment and the unresolved question concerning the precise operation of the presumption in CPR 46.9(3)(a) for bills paid by the claimant’s former husband (paras [129], [142]–[150]).