Jonathan Franklin v Your Lawyers Limited

Where a former client seeks delivery of a final statute bill, the ordinary rule that costs follow the event remains applicable unless conduct justifies a different order. A short final deadline may be reasonable when it follows earlier unanswered requests and the defendant has provided no substantive explanation. The claimant is not required to make repeated informal approaches, such as telephone calls, to prompt an unresponsive defendant. The fact that the claimant may or may not later seek assessment of the bill under the Solicitors Act 1974 does not undermine the purpose or recoverability of the costs of proceedings under section 68.

The claimant had sustained personal injuries at work and had instructed the defendant solicitors, who successfully concluded the underlying claim by settlement. The defendant did not provide a final statute bill.

After two requests supported by authority received no substantive response, the claimant issued Part 8 proceedings under section 68(1) of the Solicitors Act 1974 for delivery of the bill. The bill was delivered after proceedings had begun. The issue before the Senior Courts Costs Office was the costs of those proceedings. The defendant argued that the claimant’s pre-action and procedural conduct justified depriving him of costs, or ordering him to pay the defendant’s costs.

1. Costs discretion. The general rule under CPR 44.2 is that costs follow the event, but the court may make a different order having regard to matters including the parties’ conduct.
2. Pre-action conduct. The claimant complied with the Practice Direction – Pre-Action Conduct and Protocols by giving sufficient information about the simple request for delivery of the bill. In the circumstances, a 14-day response period was appropriate. The later seven-day letter was reasonable because it followed two unanswered requests and expressly indicated that proceedings would otherwise be issued. The defendant, a firm of solicitors, could not fairly complain that the claimant commenced proceedings without further attempts to prompt a response.
3. Conduct during proceedings. The claimant’s conduct did not justify a departure from the usual costs rule. The defendant had failed to explain its objection to delivery of the bill and its communications about an extension appeared principally to secure time to produce it.
4. Possible assessment proceedings. The absence of subsequent proceedings under section 70 of the Solicitors Act 1974 did not bear on whether the section 68 proceedings were properly brought. A former client cannot decide whether to seek assessment until the final bill has been received.
5. The claimant was the successful party. The defendant was ordered to pay the costs of the application, to be assessed on the standard basis if not agreed.