Alberto Joseph Safra v Wilmer Cutler Pickering Hale and Dorr LLP

A contentious business agreement must provide sufficient certainty as to the solicitor’s remuneration or the mechanism for fixing it. A provision allowing unilateral, open-ended changes to hourly rates, without any limit or fixing mechanism, is inconsistent with that requirement.

A retainer may permit interim statutory bills, but each bill must be complete and final for the period it covers. An invoice expressly reserving the right to include further work from the same period is not an interim statutory bill. A series of such invoices may nevertheless constitute a single Chamberlain bill when the final invoice is delivered.

Special circumstances are assessed by comparing the case with the run of the mill case and considering the aggregate circumstances. Unusual size or complexity alone is insufficient, but inadequate costs information and serious unexplained divergence from an indication of likely costs may justify assessment.

The claimant instructed the defendant under an engagement letter dated 2 September 2022, later amended, to act in five arbitrations and related proceedings concerning a substantial family dispute. The defendant rendered invoices totalling US $35,343,213.96, of which US $18,923,316.10 remained unpaid.

The claimant applied under Part III of the Solicitors Act 1974 for assessment. Preliminary issues concerned whether the engagement letter was a contentious business agreement, whether it permitted interim statutory bills, whether the invoices were statutory bills, how payments were to be treated, and whether assessment was available under sections 70(2) to (4).

1. Contentious business agreement. The engagement letter was not a contentious business agreement. Section 59 is permissive, rather than prescriptive; the court must determine the nature of the agreement on ordinary contractual principles. The letter’s provision for hourly-rate reviews was entirely open-ended as to timing and amount. It therefore lacked the certainty required of a contentious business agreement. The reference to a right to apply for assessment was also inconsistent with the defendant’s construction, though not decisive.
2. Alternative conclusion. If the engagement letter had been a contentious business agreement, it would have been set aside as unreasonable. It permitted the defendant to increase rates at its discretion while removing the client’s ability to challenge those rates on assessment.
3. Interim bills. The engagement letter did permit interim statutory bills. The word “ordinarily” concerned the timing of monthly statements, not their legal status. However, the invoices delivered were not statutory bills. The wording that each invoice included only services and disbursements posted to date meant that further charges for work in the same period could be included later. They were therefore not complete and final.
4. Chamberlain bill and assessment. The invoices collectively constituted a single Chamberlain bill, delivered on 17 September 2024. The claimant applied for assessment on 17 December 2024. The court therefore had jurisdiction under section 70(2), without the need to establish special circumstances.
5. Payments. If the invoices had been statutory bills, the claimant had not instructed that payments be allocated to particular monthly invoices. Under the ordinary rule, the defendant was entitled to apply payments to the oldest outstanding invoices first.
6. Special circumstances and conditions. Had section 70(3) applied, special circumstances would have existed. The relevant circumstances included the exceptional scale of the fees, the defendant’s inadequate and sporadic costs information, the failure to notify rate increases, and the substantial divergence between the claimant’s stated affordable level and the costs ultimately incurred. No further payment condition was justified, since the claimant had already paid more than US $16 million.
7. Order. An order was made under section 70(2) for assessment of the Chamberlain bill delivered on 17 September 2024, without conditions.