Kerry Underwood

INTERIM COSTS ORDER CAN BE MADE EVEN IF CLIENT APPLIES WITHIN ONE MONTH

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Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Warren V Hill Dickinson LLP [2019] EWHC B1 (Costs)

Master Leonard held that an order for an interim payment can be made in a solicitor and own client assessment under section 70(1) of the Solicitors Act 1974, that is where the client applies for assessment within one month of the delivery of its bill.

The client argued that the court had no such power and that section 70(1) provides for an unqualified absolute right to an assessment and that no action could be commenced on the bill until the end of its assessment procedure.

It also expressly provided that the court should not require any sum to be paid in to  court.

Section 70(1):

“Where before the expiration of one month from the delivery of a solicitor’s bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be assessed and that no action be commenced on the bill until the assessment is completed.”

The Master held that the intention of section 70(1) was to ensure that a bill was not subject to proceedings before two courts.

The prohibition of commencement of any action by the solicitor for recovery of fees did not affect an interim payment.

Section 70(1) ensures that a client who makes a timely application for assessment obtains an unconditional order for assessment.

It does not affect the assessment procedure to be followed after the order is made; that is a matter for the Civil Procedure Rules.

If the client was right, it would prevent a solicitor from obtaining an order for interim payment of an amount not in dispute, but which the client simply refused to pay. That would be unjust.

The solicitors applied for an interim costs certificate under CPR 47.16 and the Master held that that was not inconsistent with the provisions for solicitor and client assessments in the CPR and Practice Direction 46.

Had the receiving party in a solicitor/client assessment filed a request for a hearing under CPR 46.10(5), they could seek a CPR 47.16 interim certificate, and that gave the court power to make the order any time after the request for a hearing.

The Master ordered a sum which he considered highly unlikely to be less than the sum ultimately due to the solicitor.

Here the bills totalled £922,890.03 and the court ordered an interim payment of £350,000.

The judgment contains a thorough analysis of the relevant Civil Procedure Rules and the masterful understatement that “the correct application of the rules is far from obvious.”

Comment

On balance, my view is that this decision is correct, but I will be the first to admit that my view, until now,was that section 70(1) did prevent an order for payment of costs in advance of assessment.

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Written by kerryunderwood

March 1, 2019 at 9:35 am

Posted in Uncategorized

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