Laytons LLP v Shaun Terence Savage & Ors

A common law assessment following the loss of an opportunity to seek a statutory detailed assessment must remain within the issues and directions actually ordered. The court is concerned with evidence relevant to those issues, rather than evidence directed to reconstructing a detailed assessment or deciding matters that fall outside the order.

A report has no evidential standing where it is neither ordered expert evidence nor permitted witness evidence. Material outside the scope of the directions will not be considered, although a party may use it privately when preparing submissions. Specific disclosure may be refused where the defined issues can fairly be determined from the permitted witness evidence, exhibits, cross-examination and skeleton arguments.

Laytons LLP brought Part 7 proceedings against its former clients for unpaid legal fees. The defendants had intended to seek a statutory detailed assessment under Solicitors Act 1974, but failed to make the necessary application and were debarred from pursuing that route.

Following the defendants’ failure to obtain relief from sanctions, the court ordered a one-day common law assessment limited to the terms of the representation agreement, the extent to which the fees were demonstrably disputed, and interest. The defendants later served a report from Kain Knight and applied for specific disclosure. The claimant sought an order preventing reliance on the report. The central issues were the scope of the ordered assessment, the admissibility of the report, and whether further disclosure was necessary.

1. Scope of assessment. The order of 9 March 2023 defined the issues for determination. They were whether the representation agreement limited the fees, the extent to which the fees were demonstrably disputed, and the rate of interest. The order did not direct an assessment of whether the fees were excessive or a line-by-line assessment of the invoices.
2. Kain Knight report. Paragraph 3 of the order did not require a report from a costs lawyer or any other costs professional. The permitted evidence comprised witness evidence, relevant exhibits, cross-examination and skeleton arguments. The report was not expert evidence because no direction authorised expert evidence. It was not a witness statement and, at most, expressed an opinion. It therefore had no standing in the proceedings and the defendants were not permitted to rely on it at the assessment hearing.
3. The comparison with Turner & Co v Palomo SA was materially different. In that case an affidavit from an experienced solicitor was admitted as evidence. Here, the directions already permitted witness evidence, but made no provision for expert evidence. The report could be consulted when preparing the defendants’ skeleton argument, but only submissions relating to the limited issues in the order would be considered.
4. Disclosure. Under CPR 31.12, the court was satisfied that the assessment could be justly conducted without specific disclosure or inspection. The relevant evidence was that needed to decide the issues ordered, not evidence sought to reopen the opportunity for a statutory assessment or recreate points of dispute. The defendants’ application was also vague and lacked certainty.
5. The claimant’s application was granted. The Kain Knight report dated 8 August 2023 was declared to have no standing, and the defendants were prohibited from relying on it at the assessment hearing. The defendants’ specific disclosure application was dismissed. The defendants were ordered to pay the claimant’s costs of both applications, subject to summary assessment if not agreed.