Alan Biggar v Howard Kennedy LLP

Under section 70 of the Solicitors Act 1974, payment of a solicitor’s bill requires agreement to the amount paid or to be paid. Agreement may be inferred from the client’s conduct and need not identify the allocation of each payment to a particular invoice.

Special circumstances for a late assessment application are a value judgment. They need not be exceptional, but must justify departing from the statutory position. Inadequate estimates may be relevant where they deprived the client of an opportunity to make a different, less expensive choice. They do not suffice where the evidence shows that the client would have continued with the same solicitor in any event.

The claimant applied under section 70 of the Solicitors Act 1974 for assessment of 19 bills totalling approximately £196,000, delivered during the defendant firm’s representation of him in a complex Financial Conduct Authority prosecution.

The first three bills had been paid through payments made by the claimant or on his behalf. The remaining bills were wholly or partly unpaid. The application was made more than 12 months after payment of the first bills, and therefore assessment of those bills was unavailable under section 70(4). Assessment of the unpaid bills required proof of special circumstances under section 70(3).

The issues were whether the first three bills had been paid and whether the claimant had established special circumstances, relying principally on the initial estimate, the restraint order, the criminal trial, the defendant’s lien and alleged failures to notify increased hourly rates.

1. Application dismissed. The court had no power to order assessment of bills paid more than 12 months before the application. The claimant also failed to establish special circumstances for assessment of the unpaid or partly unpaid bills.
2. Following Menzies v Oakwood [2024] UKSC 34, payment requires agreement to the sum taken or to be taken in payment of the bill. Agreement may be inferred from conduct; delivery of the bill alone is insufficient. The claimant received the bills and made arrangements for payments against the outstanding balance. It was unnecessary for him to agree the allocation of particular sums to particular bills.
3. The question whether special circumstances exist is a value judgment. They need not be exceptional, but must be something out of the ordinary course which justifies assessment. The court adopted the helpful approach that fees or the circumstances in which they were charged may call for explanation or further scrutiny.
4. The initial estimate was expressly preliminary and related to limited preliminary work. Comparing it with three years of overall billing was artificial. Although regular advance estimates promised by the retainer were generally not provided, the claimant showed no lost opportunity to make a different choice. His evidence and conduct demonstrated a continuing preference to retain the defendant despite the likely cost.
5. The restraint order, the prosecution, the defendant’s enforcement proceedings and exercise of its lien were not special circumstances. The parties had contracted on the basis that third-party funding was needed and that the claimant remained personally liable for the fees.
6. The defendant’s invoices identified the fee earners and hourly rates. Any failure to send separate notices of increased rates did not justify a complete assessment and could be raised, if available, in the County Court fee proceedings.

The judgment records that the defendant had issued County Court proceedings for unpaid fees. Those proceedings were stayed by HHJ Evans-Gordon on 15 January 2025 pending determination of this assessment application.