The Winros Partnership v Global Energy Horizons Corporation

In a second appeal, permission requires a real prospect of success and an important point of principle or practice not already established, unless there is another compelling reason. Abuse of process is assessed broadly, having regard to all the circumstances. The fact that a point could have been raised earlier does not alone make its later use abusive.

For conditional fee agreements, the court must identify objectively the basis on which services were supplied. Repudiation does not create a presumption of restitution. Where the agreement expressly allocates risk and governs the relevant termination, an alternative implied basis and unjust enrichment claim cannot displace it. A solicitor’s choice not to invoke the contractual payment clause does not establish failure of basis.

The Winros Partnership, formerly Rosenblatt Solicitors, acted for Global Energy under successive conditional fee agreements. Global Energy commenced detailed assessment proceedings under section 70 of the Solicitors Act 1974. After earlier decisions concerning the validity and termination of the agreements, Global Energy raised a further defence, known as Objection 1, after the matter had been remitted for assessment.

The Senior Costs Judge rejected Rosenblatt’s abuse of process challenge and assessed the bills at nil. Marcus Smith J dismissed appeals concerning both issues in judgments reported at [2025] EWHC 2044 (Ch) and [2025] EWHC 3362 (Ch). The Court of Appeal considered whether the late defence constituted an abuse of process and whether the agreement permitted a restitutionary claim for work done before repudiatory termination.

1. Second appeal. Under rule 52.7(2) of the Civil Procedure Rules 1998, permission required a real prospect of success together with an important point of principle or practice not already established, or some other compelling reason. The grounds concerning the abuse of process decision had no real prospect of success. They raised no new point of principle or practice and there was no compelling reason. Permission was therefore refused.
2. Abuse of process. The broad, merits-based approach in Johnson v Gore Wood [2002] 2 AC 1 applied. The fact that Objection 1 could have been raised earlier was not decisive. The hearing before Master James had not been intended or ordered to determine every liability issue. Objection 1 arose naturally from Trower J’s later conclusion that termination had been lawful. It had not previously been adjudicated, and there was no agreement or requirement that it be raised earlier. Raising it later was therefore not abusive. The principles also applied at interlocutory stages, but their application remained fact-sensitive.
3. Unjust enrichment. Acceptance of repudiatory breach operates prospectively. It leaves accrued rights intact and discharges future primary obligations, subject to contractual modification. There was no presumption that restitution was available merely because the agreement had been discharged.
4. Conditional fee agreement. The basis on which services were supplied had to be identified objectively. CFA-3 was a carefully calibrated agreement which allocated the risk of non-payment and expressly addressed the circumstances in which Rosenblatt could terminate for the client’s non-performance. Clause 14.3 governed the circumstances that arose. Rosenblatt could have invoked it but chose instead to accept repudiation and claim damages. It could not imply a different basis or use unjust enrichment to obtain a remedy duplicating or overriding the agreed allocation of risk. Since the alleged basis was not established, failure of basis did not arise.
5. Disposition. The merits appeal was dismissed. It was unnecessary to decide the appropriate forum for a quantum meruit claim in a section 70 assessment.

• Court of Appeal (Civil Division) refused permission to appeal the abuse of process decision and dismissed the merits appeal.
• Business and Property Courts (ChD) Marcus Smith J dismissed Rosenblatt’s appeal concerning abuse of process in [2025] EWHC 2044 (Ch) and dismissed the merits appeal in [2025] EWHC 3362 (Ch).
• Senior Courts Costs Office Senior Costs Judge Gordon-Saker rejected the abuse of process challenge and assessed the relevant bills at nil. Earlier, Trower J had allowed the appeal from Master James in part and held that the conditional fee agreements were enforceable and that termination had been justified.