Broadfield Law UK LLP v Emily Barnes

An agreement between solicitor and client is a contentious business agreement only if it is sufficiently certain as to the solicitor’s remuneration. The 1990 amendments to the Solicitors Act 1974 confirmed that remuneration may be fixed by reference to an hourly rate, but did not remove the requirement for certainty.

A specified hourly rate applied to actual hours worked may provide a sufficient fixing mechanism. A range of rates, unspecified rate increases, or uncertainty about which fee earner will perform the work may not. The appeal was dismissed.

The respondent solicitors claimed unpaid fees arising from a written retainer for family litigation. The retainer specified different hourly rates for named and unnamed fee earners, allowed rates to change, and gave estimates rather than a fixed price.

The appellant argued that the retainer was a contentious business agreement under section 59 of the Solicitors Act 1974. She contended that the claim should instead proceed under section 61 and that the costs should be assessed. The District Judge held that the agreement was too uncertain to be a contentious business agreement, and His Honour Judge Davies dismissed the first appeal. The central issue on the second appeal was whether the 1990 amendments had removed the certainty requirement identified in Chamberlain v Boodle & King.

Appeal dismissed. The Court of Appeal, by the judgment of Andrews LJ agreed with by Warby and Lewison LJJ, held as follows.

1. Statutory construction. The words “an agreement in writing with his client as to his remuneration” in section 59 of the Solicitors Act 1974 require sufficient certainty as to the remuneration agreed. The 1990 amendments inserted an express reference to remuneration by reference to an hourly rate, but did not alter that requirement. They resolved whether an hourly rate could be used, not whether an uncertain charging arrangement could qualify as a contentious business agreement.
2. Hourly rate agreements. An hourly rate agreement may qualify where a specified rate applies to all work throughout the litigation, or to work up to a specified maximum number of hours. The actual hours recorded in the statutory bill may then provide the fixing mechanism. Under section 61(4B), a costs judge may assess the number of hours worked and whether they were excessive, but may not reduce an agreed hourly rate indirectly by disallowing appropriate hours.
3. Insufficient certainty. A range of hourly rates dependent on the nature or complexity of the work does not identify the remuneration agreed, even if the range has a maximum. Similarly, unspecified increases and uncertainty about which fee earner will perform particular work prevent the client from knowing the financial commitment undertaken.
4. Application. The retainer contained specified rates for some fee earners, ranges for others, unspecified increases, and no sufficiently precise allocation of work. It therefore provided no adequate fixing mechanism and was not a contentious business agreement. The ordinary statutory costs regime applied.
5. The court declined to decide conclusively whether a firm with several solicitors could enter an hourly rate contentious business agreement. Such an agreement might be possible if it precisely specified the work to be performed by each fee earner and the applicable rate.

The findings of the lower courts were upheld and the appeal was dismissed.

• Court of Appeal (Civil Division): The second appeal was dismissed. The court upheld the conclusion that the retainer was not a contentious business agreement.
• County Court at Hertford, HH Judge Davies: On 11 March 2025, the first appeal was dismissed.
• County Court at Hertford, District Judge: On 24 October 2024, the agreement was held insufficiently certain to constitute a contentious business agreement.