One of the more vulgar fates that may await a solicitor, is the ignominy of not only having their bill of costs disputed by a client, but the client feeling sufficiently enraged to make an application for a solicitor and client assessment of costs, under section 70 of the Solicitors Act 1974. All solicitors wish to appear in the Law Reports, but not, of course, as a party to litigation.
Such cases are invariably dealt with by the costs judges in the Senior Courts Costs Office. Enter the cathedral of justice that is the Royal Courts of Justice, make your way through the Hogwartian majesty of the great hall, with its marble, columns, and stained glass, and turn left by Cafe 26. Ahead of you will lie the shabby 1970s office block, where the costs judges live.
Solicitor and client assessments can be a bed of nails for a solicitor for many reasons. Three examples will suffice, to explain why such disputes should be avoided, through first rate client care, and ensuring that clients are kept on board, as their matter progresses, and costs inevitably arise.
First, although there is an ostensibly short time frame for bringing an assessment under section 70: a client only has an absolute right to an assessment for 1 month after delivery of the bill, there are various arguments, that can be used to obtain a de facto extension of time: was in fact a compliant statutory bill delivered? Are there circumstances which justify an extension? Has time in fact started to run at all depending on whether the bill has been “‘paid” or not?
Secondly, although a well run file will see the client regularly updated on costs estimates, their consent to the incurrence of charges, expenses and disbursements obtained so that if later challenged, a solicitor can rely upon the presumptions in CPR 46, that the the costs are reasonably incurred and reasonable in amount to defeat that challenge, the files that go to assessment tend not to be the well run ones.
Thirdly, working practices which are efficient and make sense, for the litigation, may prove problematic on defending a solicitor and client challenge. There are rarely attendance notes in commercial disputes: the work is evidenced in the timebilling record, the emails, and the diary entries. But in consequence it can be harder to evidence what was done, in comparison to say a personal injury file.
As always an ounce of prevention is worth a pound of cure: clear terms as to what amounts to a bill, when it is delivered, how it is paid, ongoing client management with estimates and agreement to costs being incurred during the case, and an eye to evidencing the value of what work was done, all go a long way, to protecting a solicitor’s position.