Topalsson GmbH v CMS Cameron McKenna Nabarro Olswang LLP

A solicitor may render interim statute bills only where the retainer expressly permits them, a natural break occurs, or the parties’ conduct supports that conclusion. A term stating that monthly bills will state the period covered does not make them final for that period. Without such entitlement, successive bills may comprise one final statute bill. Where assessment is sought within 12 months of delivery, the application falls under section 70(2) of the Solicitors Act 1974. Section 70(6) permits assessment of selected categories of costs, including some disbursements, rather than requiring assessment of all costs or all non-profit costs.

Topalsson GmbH sought detailed assessment of 27 bills rendered by CMS Cameron McKenna Nabarro Olswang LLP under two retainers: one for non-contentious contractual advice and one for litigation. The parties disputed whether the bills were interim statute bills or successive payments on account forming one final bill. They also disputed the applicable subsection of section 70 of the Solicitors Act 1974, whether special circumstances existed for older bills, and whether assessment could exclude counsel’s fees and court fees.

The court also considered the effect of the solicitors’ termination of the retainer and the scope of the court’s power to order partial assessment.

1. The court held that the retainers did not authorise interim statute bills. The references to monthly billing and bills stating the period covered did not say that each bill was final for that period. The expression “covered” did not make the bill conclusive. The contractual reference to a final bill was more consistent with a final reckoning at the end of the retainer.

2. Applying Chamberlain v Boodle & King [1982] 1 WLR 1443 (CA), the successive invoices were part of a running account. The last bill, dated 30 May 2022, incorporated the earlier bills and was the final statute bill for both retainers.

3. The final bill was delivered on 7 June 2022 and proceedings were issued on 7 June 2023. The day specified was excluded when calculating the 12-month period. The application therefore fell within section 70(2) of the Solicitors Act 1974, and special circumstances were unnecessary. The question of terms, including any payment on account, was reserved for directions.

4. In the alternative, special circumstances existed for assessment of bills rendered between 30 June 2021 and 16 May 2022. Special circumstances involve a value judgment comparing the case with the ordinary run of cases. The substantial increase between the costs estimates justified further enquiry. Complaints about personnel, hourly rates, internal billing references, work during pauses, and external funding did not independently justify assessment.

5. The defendant was entitled to terminate the retainers for non-payment. A query about part of a bill did not remove liability to pay the queried amount, subject to any later credit note.

6. Section 70(6) permitted an order assessing profit costs and selected categories of non-profit costs. The court could therefore exclude counsel’s fees and court fees while assessing the other challenged costs, including the Integreon disbursements.