Summary
A clear contractual term may authorise a solicitor to render interim statutory bills that are final for the relevant period. The solicitor need not separately explain the statutory time limits or other legal consequences of such bills unless a statutory or regulatory obligation requires it.
Professional and regulatory duties are not automatically implied contractual terms. An implied term requires necessity, business efficacy or obviousness, and cannot contradict an express term. Consumer-protection arguments raised very late in detailed assessment proceedings may engage issue estoppel, waiver and abuse of process, but permission to appeal should be granted where those procedural questions require fuller examination.
Factual background
The appellants were former clients of the respondent solicitor. They challenged bills delivered during a long-running retainer and sought detailed assessment under Solicitors Act 1974, section 70.
Earlier proceedings established that the retainer permitted interim statutory bills and that the invoices were such bills. On remission, the appellants argued that the bills were invalid because they had not given informed consent and that consumer-protection legislation rendered the retainer term ineffective. The Costs Judge rejected the informed-consent argument and later barred the consumer-protection arguments as too late.
The appeal concerned whether informed consent or an implied contractual term was required, and whether permission should be granted to challenge the procedural bar imposed on the consumer-protection arguments.
Held
- Informed consent. The appeal against the finding that informed consent was unnecessary was dismissed. A solicitor may render interim statutory bills where the retainer contains clear wording showing a contractual intention that the bills are final for the relevant stage or period. The term in this retainer was sufficiently clear.
- The hardship identified in authorities concerning clients being required to challenge their solicitor during ongoing litigation is especially relevant where consent is ambiguous, arises from a natural break, or is based on conduct or acquiescence. It does not justify rewriting a clear express term.
- Neither the Solicitors Act 1974 nor the applicable professional rules imposed an obligation to explain the full legal consequences of interim statutory bills. The reasoning in Richard Slade & Co v Erlam and Ivanishvili v Signature Litigation LLP was persuasive and was followed. Dean Menzies v Oakwood Solicitors Ltd was consistent with that approach.
- The proposed implied term requiring compliance with professional and consumer-protection requirements was rejected. Regulatory and statutory duties have their own consequences and are not thereby incorporated into the retainer. The stringent tests of necessity, business efficacy and obviousness were not satisfied, and the proposed term would be inconsistent with the express bargain and potentially operate as a condition precedent to recovery.
- The Respondent’s Notice based on issue estoppel, waiver and Henderson v Henderson was not determined because it was unnecessary.
- Permission to appeal was granted on whether the consumer-protection arguments were correctly barred by issue estoppel, waiver and abuse of process. The court did not determine the substantive consumer-protection issues. A fuller appeal was required, with more focused written materials and directions for a further hearing.
The court’s approach to earlier authorities
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Appellate history
- High Court (King's Bench Division): appeal from the Costs Judge’s decisions dated 15 June 2022 and 18 May 2023. The informed-consent appeal was dismissed. Permission to appeal was granted on the procedural bar affecting the consumer-protection arguments.
- Court of Appeal: earlier proceedings established that the invoices were valid statutory bills, while the contractual entitlement issue was not pursued further.
Key cases cited
23 authorities cited.
- Nazir Ali v Petroleum Company of Trinidad and Tobago [2017] UKPC 2
- Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Limited and another [2015] UKSC 72
- Johnson v Gore Wood & Co [2002] 2 AC 1
- Henderson v Henderson (1843) 3 Hare 100
- Dean Menzies v Oakwood Solicitors Limited [2023] EWCA Civ 844
- Darya Belsner v Cam Legal Services Limited [2022] EWCA Civ 1387
- Yoo Design Services Ltd v Iliv Realty PTE Ltd [2021] EWCA Civ 560
- Koza Ltd & Anor v Koza Altin Isletmeleri AS [2020] EWCA Civ 1018
- Motto & Ors v Trafigura Ltd & Anor (Rev 3) [2011] EWCA Civ 1150
- Tannu v Moosajee & Anor [2003] EWCA Civ 815
- Richard Slade and Company plc v Erlam [2022] EWHC 325 (QB)
- Daewoo Shipbuilding And Marine Engineering Company Ltd v Songa Offshore Equinox Ltd & Anor [2020] EWHC 2353 (TCC)
- Vlamaki v Sookias & Sookias [2015] EWHC 3334 (QB)
- Bari v Rosen [2012] 5 Costs LR 851
- Seele Austria GmbH Co v Tokio Marine Europe Insurance Ltd [2009] EWHC 255 (TCC)
- Mastercigars Direct Ltd v Withers LLP [2007] EWHC 2733 (Ch)
- National Westminster Bank Plc v Spectrum Plus Ltd & Ors [2004] EWHC 9 (Ch)
- Adams v Al Malik [2003] EWHC 3232
- Ivanishvili v Signature Litigation LLP [2025] 1 WLR 147
- Harrod’s Ltd v Harrod’s (Buenos Aires) Ltd [2014] 6 Costs LR 975
- Re Lune Metal Products [2007] Bus LR 689
- Davidsons v Jones-Fenleigh [1980] 124 SJ 204
- Masters v Charles Fussell and Co
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Cases citing this case
2 later cases · 1 positive · 1 caution
Most senior citing decisions:
- Topalsson GmbH v CMS Cameron McKenna Nabarro Olswang LLP [2025] EWHC 118 (SCCO) explained
- Lansdowne Group Limited & Anor v Weightmans LLP [2024] EWHC 1600 (SCCO) approved
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