Tina Frances Tucker & Anor v Jenna Louise Howe

An assessment under section 71(3) of the Solicitors Act 1974 protects the interests of the estate and beneficiaries and may involve a wider inquiry than an assessment under section 71(1). A beneficiary may challenge a solicitor’s bill even where the executor approved it, although fully informed approval remains a major consideration. The application is made by the person interested in the property, not by the executor in that capacity. The assessing court has discretion to allocate the assessment costs. Where beneficiaries pursue the assessment, their unreasonable conduct may justify an indemnity costs order against them personally. VAT is recoverable where the solicitor and the administrator are separate contracting parties and the services are not a self-supply.

The claimants were executrices and residuary beneficiaries of an estate. They sought, and pursued, a third-party detailed assessment under section 71(3) of the Solicitors Act 1974 concerning costs incurred by the former administrator, a solicitor and partner of the instructed firm. The bill was substantially reduced on assessment, but the claimants’ conduct was found to have been unreasonable to a high degree.

The remaining issues were whether the estate or the claimants should bear the assessment costs, whether those costs should be assessed on the indemnity basis, and whether VAT was recoverable.

1. Nature of the assessment. The assessment was under section 71(3) of the Solicitors Act 1974. Following Kenig v Thomson Snell & Passmore LLP [2024] EWCA Civ 15, such an assessment is wider than one under section 71(1). The court must have regard to section 70 so far as applicable and to the applicant’s interest. The estate and beneficiaries are the interests to be protected. A beneficiary may challenge a bill despite executor approval, although fully informed approval may be determinative.
2. The claimants pursued the assessment as beneficiaries, not as executrices. Section 71(3) does not empower the court to order an assessment on the application of an executor in that capacity. The procedural description of the claimants as executrices did not determine the substance of their application.
3. The costs of the assessment were a matter for the assessing judge. CPR 46.2 did not apply because the court was not making a costs order against non-parties. The claimants’ rejection of reasonable settlement attempts and their unreasonable conduct justified confirming that they should bear the assessment costs on the indemnity basis. The insolvent estate, and beneficiaries who had not participated, should bear none of that burden.
4. Under CPR 47.14(6), the claimants could not raise VAT objections to the bill itself because those objections had not been included in the points of dispute and no permission had been sought. In any event, the VAT was recoverable. Mr Keeley and Freeths were separate entities, and Freeths supplied services to him under contracts of retainer. His former administrator status did not create a self-supply. The same applied to counsel’s fees, bill-preparation costs and the costs of the assessment.