Saint Benedict’s Land Trust Limited v London Borough of Camden Council & Anor

In detailed assessment proceedings, a receiving party may be required under Civil Procedure Rules 1998 Practice Direction 47, paragraph 13.13, to elect whether to disclose a privileged retainer or rely on other evidence only where the paying party raises a genuine factual issue. The issue must be real and relevant, and not sham or fanciful. A receiving party is ordinarily presumed liable to pay its solicitors’ costs. That presumption is displaced only by a genuine challenge, not by a demand that the receiving party prove its entitlement. The court deciding whether to require an election decides only whether the threshold is met. It does not determine the underlying liability to pay the solicitors’ fees.

The respondents had been awarded costs in winding-up proceedings. In the subsequent detailed assessment, the appellant challenged whether the respondents were liable to pay their solicitors under privileged collective conditional fee agreements. The District Judge, having seen the agreements, refused to require an election under paragraph 13.13 of Practice Direction 47. On appeal, that decision was set aside because the District Judge had addressed the substantive liability issue before deciding whether the appellant had raised a genuine issue.

The High Court then determined the election application on paper, having reviewed the agreements without disclosing their terms to the appellant. The central issue was whether the appellant had raised a genuine issue as to liability for the solicitors’ own fees.

1. Election application allowed. The respondents were to be asked to elect whether to disclose the collective conditional fee agreements and rely on them, or to retain privilege and prove liability by other evidence.
2. Paragraph 13.13 of Practice Direction 47 applies where the court considers that a document is necessary to decide an issue in detailed assessment proceedings. The receiving party may then be required to choose between disclosure and reliance on other evidence.
3. Following Pamplin v Express Newspapers Ltd [1985] 1 WLR 689, the threshold is whether the paying party has raised a factual issue which is real and relevant, and not a sham or fanciful dispute. The challenge must be genuine and made in good faith. Hazlett v Sefton Metropolitan Borough Council [2000] 4 All ER 887 supplied a further articulation of the same principle.
4. There is ordinarily a presumption that the receiving party is liable to pay its solicitors’ costs. The presumption is not displaced merely because the paying party demands proof. A genuine issue as to liability is required before the receiving party can be required to produce evidence.
5. The appellant raised no genuine issue concerning properly incurred disbursements, which were payable under the agreements regardless of the outcome. A genuine issue did arise concerning the solicitors’ own fees because the petition debt had been paid and then returned, the petition had been dismissed, and costs had been awarded only for part of the proceedings. The court could not conclude that there was no issue as to whether the contractual trigger for payment had occurred.
6. The court decided only that the low threshold for an election had been met. It expressed no view on the substantive question whether the respondents were liable for the solicitors’ fees.

1. District Judge Bartley: on 12 September 2023, refused the application to require the respondents to elect whether to disclose their conditional fee agreements.
2. High Court: on 31 March 2025, allowed the appeal and set aside the District Judge’s refusal, without determining the substantive election application.
3. High Court: on 24 June 2025, determined the election application on paper and allowed it.