Captivatiun Limited v Orr Litchfield Solicitors Limited

A client who applies for a detailed assessment of solicitors’ costs outside the statutory time limit must establish special circumstances warranting the court’s discretion. General complaints that fees are excessive, unreasonable, fabricated or unsupported will not, without more, justify transferring a dispute from existing Part 7 proceedings to Part 8 assessment proceedings where the factual issues can be investigated at trial. The court should consider the procedural progress, available directions, disclosure, costs consequences, proportionality and likely timing of each route. Concurrent proceedings are not automatically an abuse, although proceedings may be dismissed where they duplicate an existing claim and the statutory threshold for assessment has no realistic prospect of being met. CPR 46.14 is directed to cases where all substantive issues are agreed and only the amount of costs remains in dispute.

The claimant instructed the defendant solicitors in April 2022 and received two invoices. The defendant later issued Part 7 proceedings to recover unpaid fees. The claimant subsequently issued Part 8 proceedings seeking an order and directions for a detailed assessment under the Solicitors Act 1974.

The claimant was out of time and relied on the court’s discretion based on special circumstances. The defendant applied to dismiss the Part 8 proceedings, alleging delay, abuse of process and ineligibility to use the procedure. The central issues were whether special circumstances existed, whether the Part 8 claim duplicated the Part 7 proceedings, and whether CPR 46.14 applied.

1. The Part 8 proceedings were dismissed. The defendant’s dismissal application succeeded. The claimant was out of time but could seek the court’s discretion to permit assessment under section 70(3)(c) of the Solicitors Act 1974. Section 70(3) created a presumption against assessment after 12 months, and the claimant bore the burden of showing special circumstances warranting further investigation and use of court resources.
2. The claimant’s complaints did not disclose special circumstances. Complaints that the bills were excessive or unreasonable were common features of solicitor-client disputes. Allegations that work had not been done or that fees were fabricated were serious, but they could be investigated through disclosure, witness evidence and cross-examination in the existing Part 7 proceedings. They would not be dealt with in a materially different way through Part 8.
3. The issue was not resolved merely by characterising the concurrent claim as abusive. Considerable inference would be required to conclude that the claimant had issued Part 8 proceedings to harass or wear down the defendant. The mere issue of a Part 8 claim would ordinarily cause only minimal expense. Nevertheless, the defendant was entitled to resist proceedings which duplicated the existing Part 7 claim.
4. The Part 7 proceedings were already allocated to the fast track, subject to fixed-cost provisions, disclosure and witness-evidence directions, an ADR provision and a listed trial. They offered an earlier and proportionate route to resolving the fee dispute. Part 8 offered no compelling procedural or costs advantage, and a stay would risk delay and a further hearing on special circumstances.
5. CPR 46.14 did not assist the claimant. Its conditions included agreement on all issues, including liability for costs, with only the amount of costs left unresolved, and no proceedings having been started. The parties remained in dispute as to whether any costs were payable, and Part 7 proceedings had already begun.
6. The defendant was awarded the costs of the application and of objecting to the Part 8 claim. The judge expressed serious concerns about the magnitude of those costs and indicated that the parties should seek to agree a sensible sum before any summary assessment.