Clare Griffin v Kleyman & Co Solicitors Ltd

On a solicitor-and-client assessment, inadequate costs information may justify limiting recoverable costs to what it is reasonable, in all the circumstances, for the client to pay. The court should consider the estimate, the extent by which it was exceeded, any satisfactory explanation, the client’s reliance and whether the client lost an opportunity to act differently.

An estimate is not a maximum charge. It must be realistic on the information available and may assume that the client will accept reasonable advice and conduct the matter cost-effectively. Costs caused by the client’s unreasonable conduct or unforeseeable developments need not be confined by the estimate. The appropriate figure remains a matter for detailed assessment.

The claimant sought an assessment under Solicitors Act 1974, section 70, of bills totalling approximately £182,000 rendered by the defendant solicitors for ancillary-relief proceedings. The preliminary issue was whether the defendant’s recoverable costs should be limited by estimates given during the retainer, or by the absence of an estimate at particular stages.

The defendant gave a detailed estimate in May 2020 and an updated estimate in July 2020. Costs substantially exceeded the July estimate before and after the family-court proceedings. The claimant alleged that the estimates were inadequate and that she had lost the opportunity to make informed funding or representation decisions. The defendant relied on the uncertainty of the litigation, unforeseeable developments and the claimant’s conduct.

1. Applicable approach. The court adopted the principles in Garbutt v Edwards, Leigh v Michelin Tyre plc, Mastercigars Direct Ltd v Withers LLP and Reynolds v Stone Rowe Brewer. If no adequate estimate is given, the court may limit the amount recoverable to what it is reasonable, in all the circumstances, for the client to pay. It is not necessary for the client to prove that a different course would probably have produced a better outcome; loss of an opportunity to act differently may suffice, although speculative reliance carries less weight.
2. Nature and timing of estimates. A solicitor must provide the best possible costs information when engaged and as the matter progresses, but the obligation is flexible. A meaningful estimate may be impossible when the scope of instructions and relevant information remain uncertain. The solicitor need not provide a separate estimate for every contingency. An estimate is a yardstick, not a maximum figure.
3. Client conduct and explanations. Estimates ordinarily assume that the client accepts reasonable advice and conducts the litigation in a reasonable and cost-effective manner. Where the client rejects advice, pursues unnecessary issues or otherwise causes avoidable work, the solicitor is entitled to be paid for resulting costs, subject to detailed assessment. Unforeseeable developments may also explain an excess over the estimate.
4. Application. The May 2020 estimate was given as soon as reasonably possible and was necessarily qualified. The July 2020 estimate was the relevant estimate and included costs already billed, amounting to £82,648.80. It should have been updated by the end of August 2020 when substantial excess became apparent, but an update would not have altered the course of events. A further estimate should have been given after the family-court judgment on 6 October 2020, but the claimant’s subsequent conduct and unforeseeable difficulties made it impossible to identify a fair overall limit, and an estimate would probably have had no material effect.
5. Disposition. The defendant’s recoverable costs were not limited by reference to the estimates given or omitted. The bills were to proceed to full detailed assessment to determine the sum it was reasonable for the claimant to pay.