Fadila Bendriss v Nicholson Jones Sutton Solicitors Ltd

In solicitor-and-client assessment proceedings, an application for specific disclosure must be relevant and proportionate to the sums and issues genuinely in dispute. Disclosure intended to discover whether a client might develop uncertain claims, such as a secret-commission challenge, is materially different from inspection of the solicitor’s file to identify arguable challenges to costs.

An ATE premium is generally not a solicitor’s disbursement assessable under Solicitors Act 1974, section 70, even if the solicitor includes it in the bill. Any dispute concerning its treatment may instead require a positive case concerning the cash account. Broad requests for recordings of all telephone calls are disproportionate where the cost of reviewing them exceeds the sum potentially challenged.

The claimant challenged costs charged by her former solicitors, including an ATE premium of £392 and charges for telephone attendances. She sought specific disclosure of communications and records concerning the insurance arrangements, regulatory and accounting records, and recordings of telephone calls.

The application arose in solicitor-and-client assessment proceedings under the Solicitors Act 1974. The central issues were whether the requested documents were relevant and proportionate, whether the ATE premium could be assessed as part of the solicitor’s bill, and whether the call-recording request constituted a proper and proportionate category for specific disclosure.

1. Application dismissed. The claimant’s requests for disclosure concerning the ATE arrangements and for recordings of telephone calls were refused.
2. Disclosure in detailed assessment proceedings is ordinarily intended to enable the client to identify which costs shown in the solicitor’s breakdown may be challenged. It is different from obtaining the file to investigate uncertain collateral claims, such as possible secret commissions. The court must manage proceedings in accordance with the overriding objective and proportionality. The modest ATE premium, the uncertainty of the proposed challenge, and the substantial costs of the application made further disclosure inappropriate.
3. The defendant could not realistically be criticised for failing to include centralised accounting or regulatory records in the solicitor’s ordinary file. Documents in the defendant’s custody or control could nevertheless have been ordered if relevant. The contradictory evidence concerning the insurance portal and communications gave the claimant understandable uncertainty, but that did not overcome the proportionality problem.
4. Following Herbert v H&H Law Limited, an ATE premium is not generally a solicitor’s disbursement for assessment under section 70. The solicitor’s inclusion of the premium in the bill did not alter that conclusion. The issue of whether, and how, the amount should be deducted could be addressed separately through the cash account. The points of dispute should not necessarily contain the positive case concerning the cash account; the pleadings could proceed on a staggered basis.
5. The request for recordings of all calls concerning the claimant’s matter was disproportionate. Most calls were routine items whose claimed duration did not create a meaningful accuracy issue. Listening to every recording before deciding whether to challenge any item would cost substantially more than the sums at stake and was contrary to the overriding objective.

First-instance application for specific disclosure in solicitor-and-client assessment proceedings. The judgment referred to Turner v Coupland Cavendish, an earlier decision concerning call recordings, which was subject to a separate appeal on another issue.