Alan Biggar v Howard Kennedy LLP

Costs Judge Leonard:

1. This is the Claimant’s application under section 70 of the Solicitors Act 1974 for the assessment of a series of 19 bills, totalling £195,954.60, delivered to the Claimant by the Defendant. The first of the bills was delivered on 29 June 2020 and the last on 28 July 2023. According to the Defendant’s records payment has been taken in full against the first three bills in the series, to 26 August 2020. The remainder are wholly or partly unpaid.

2. Section 70 of the 1974 Act , insofar as pertinent, reads as follows: “(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. (2) Where no such application is made before the expiration of the period mentioned in subsection (1), then, on an application being made by the solicitor or, subject to subsections (3) and (4), by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit (not being terms as to the costs of the assessment), order— (a) that the bill be assessed ; and (b) that no action be commenced on the bill, and that any action already commenced be stayed, until the assessment is completed. (3) Where an application under subsection (2) is made by the party chargeable with the bill— (a) after the expiration of 12 months from the delivery of the bill, or (b) after a judgment has been obtained for the recovery of the costs covered by the bill, or (c) after the bill has been paid, but before the expiration of 12 months from the payment of the bill, no order shall be made except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the assessment as the court may think fit. (4) The power to order assessment conferred by subsection (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.”

3. The Claimant’s section 70 application was made, under CPR Part 8, on 9 January 2025. It is accepted by both parties that all of the bills delivered by the Defendant to the Claimant were statutory bills, to which section 70 applies. It follows that ( section 70(4) ) this court has no power to order the assessment of any of the Defendant’s bills which were paid before 9 December 2024, and that ( section 70(3) ) the Claimant must demonstrate that special circumstances justify an order for the assessment of any which remain wholly or partly unpaid.

4. The issues I have to determine are whether the Defendant is right to say that the first three bills in the series have been paid; and whether such special circumstances exist. The Terms of Retainer

5. The Defendant acted for the Claimant between June 2020 and June 2023, in connection with charges of fraudulent trading brought by the Financial Conduct Authority (“FCA”), which resulted in a long trial at Southwark Crown Court.

6. The fraud charges related to Worthington Group plc (“Worthington”), a company listed on the London Stock Exchange. It was alleged that the Claimant, with a number of associates, knowingly concealed Worthington’s insolvent financial position and that they made a series of misleading announcements to the market in order to artificially inflate the share price, so they could make profits from selling their shares.

7. The contract of retainer between the Claimant and the Defendant was embodied in an engagement letter dated 12 June 2020, signed by the Claimant on 14 June 2020, and the Defendant’s standard terms of business, which were expressly incorporated into the terms of engagement.

8. The engagement letter included the following paragraphs: “Our hourly charge-out rates depend on who does the work, and are related to seniority and experience. An experienced person can do more in less time: a higher charging rate does not necessarily mean a higher total cost. We will not spend longer than is reasonably required, but some matters are very time-intensive. The current charge-out rates for the lawyers who are likely to be involved in working for you are set out in Section D at the end of this letter. Those rates are exclusive of disbursements and specific expenses. They are subject to periodic review see paragraph 2 of our Terms of Business. Any increase in our charge-out rates will be notified to you. If you have any query about revised rates please contact me straight away… Where possible, we try to give an estimate of the overall likely cost of the work which we are instructed to do. But in matters like this, it is not possible to give a precise estimate of our charges, as at the outset we cannot predict with accuracy how much work will be involved. However, based on my experience of similar matters, I estimate that our fees for carrying out the work detailed in section A will be in the region of £10,000 £15,000 plus VAT, disbursements and specific expenses. If this is to change significantly we will raise this with you in advance of proceeding with the further work. Please note that this is only a preliminary estimate of our fees for dealing with this matter. As the matter progresses we will provide further estimates for each phase of work, normally on a monthly basis. In particular, if we need to apply to court for the discharge of the Restraint Order I will provide you with a separate estimate for that work to include Counsel's fees.”

9. Section A in the engagement letter, under the heading “The work we are engaged to do”, read: “… Reading all relevant papers… Liaising with your previous solicitors and the FCA… Advising you in relation to the Restraint Order and the investigation generally… Contacting the FCA in relation to disclosure of items not previously disclosed… Contacting the FCA in relation to a variation or discharge of the Restraint Order… Advising you in relation to next steps… General care and attention.”

10. The Restraint Order referred to in the engagement letter had been made 13 April 2018 by HHJ Taylor in the Crown Court at Southwark. It prevented the Claimant and his wife from disposing of, diminishing the value of or dealing with their assets. The order was subject to limited exceptions which did not extend to the Defendant’s legal fees.

11. The Defendant’s standard terms of business included the following. Under the heading “Charging Rates”: “Our current hourly charge-out rates are set out in the Engagement Letter which accompanies these Terms. They apply to work carried out in the ordinary course of the matter during normal office hours. Where the work is extremely urgent or requires us to work outside normal office hours, we reserve the right to charge a premium on these rates. Our fees will be based on the rates in force when we carry out the work. Our rates are reviewed half yearly on 1st May and 1st November in each year and we will notify you in writing of any change in the rates, but not necessarily before the change in rates comes into effect…”

12. Under the heading “Estimates of Costs”: In these Terms and in our correspondence with you an "estimate" means a provisional estimate intended only as a guide to the likely level of our costs. In contrast, a "quotation" means a firm indication of what our costs will be for our work for you. We will if possible give you an estimate of the likely level of our costs but this is not a quotation, nor an upper limit on our costs, and must not be regarded as a commitment about the likely final cost of our work for you. Any estimates which we give are not intended to be legally binding. We will tell you when estimates need to be revised. Unless expressly agreed with you in writing we do not work on a fixed fee basis… We aim to give you the best possible information, both at the outset and when appropriate as your matter progresses, about the likely overall cost of the work we are doing for you. But in some matters it may not be possible to give an estimate as to the likely overall amount of our costs, for example… In litigation matters… if complicated legal points are involved… if there are disputes about the facts of a case… In such matters we may simply be able to tell you our hourly rates, or propose a budget for a preliminary investigation. Such a budget does not imply that we will be able to complete the matter within the budget figure. Any of those or similar factors will have a bearing on the amount of time which we need to spend, or upon any disbursements or other costs which need to be incurred. In such cases we will inform you and will be entitled to increase any estimate or quotation which we have given. If we cannot agree with you an increase in any estimate or quotation arising from the factors mentioned in the previous paragraph, we reserve the right to cease acting for you, and paragraph 16 will then apply. You need to bear in mind the risk that in litigation matters there may be an appeal against the decision of a lower court. In giving you any estimate of litigation costs, we do not allow for the further costs of any appeal by you or your opponent to a higher court. Please note that VAT, specific expenses and disbursements must be added to any estimate, quotation or fixed fee proposal.”

13. Under the heading “Delivery of Bills”: “Bills will be rendered from time to time during the course of our work… Bills will usually be rendered on a monthly basis or more often in litigation… Unless otherwise stated, each bill issued to you is a final bill covering the total charge for the work carried out within the stated period. Further, unless otherwise stated, each bill has the status of a statute bill which means that in the event of non-payment we are entitled to issue proceedings for recovery through the courts after the expiration of one month from the date of delivery of the bill. A statute bill also gives you certain rights to have the bill assessed by the court under the Solicitors Act 1974 if you consider that you have been incorrectly charged. The rights to have a bill assessed are however subject to time limits and lost if action is not taken by you promptly. You should note that your right to have a bill assessed is separate from your right to complain…”

14. Under the heading “Payment of Our Bills”: “Payment of bills is due on delivery. If a bill is not paid within one month, we may charge interest from the date of delivery of the bill, at the rate from time to time applicable to judgment debts. While there is money owing to us for bills we have delivered, we are entitled to retain your papers and documents by exercising a lien until we receive payment. Our lien is not waived even if we receive funds on account or other security from you or a third party. We will be entitled to pay our bills and any specific expenses and disbursements out of any client money that we hold or receive on your behalf, after we have advised you of the bills in question…”

15. Each of the bills subsequently delivered by the Defendant to the Claimant incorporated the following wording, similar to that in the Defendant’s terms of business: Unless otherwise stated, each of our bills has the status of a statute bill (but is not necessarily a final bill in the matter) which means that in the event of non-payment we are entitled to issue proceedings for recovery through the courts after the expiration of one month from the date of delivery of the bill. A statute bill also gives you certain rights to have the bill assessed by the court under the Solicitors Act 1974 if you consider that you have been incorrectly charged. Your right to have a bill assessed is subject to time limits and lost if you do not take action promptly. Your right to have a bill assessed is separate from your right to complain...” The Dealings Between the Parties

16. Mr Ian Ryan is a partner at the Defendant firm and head of the Defendant’s Business Crime and Regulatory Team. Mr Ryan had conduct of the Claimant’s case. He has given a witness statement on behalf of the Defendant. Mr Ryan’s account of the dealings between the Claimant and the Defendant are largely borne out by contemporaneous correspondence exhibited to the parties’ witness statements, and there is no substantial conflict of evidence between the parties in most respects.

17. Mr Ryan describes the litigation with which the Claimant was involved as highly complex, and says that the Claimant had already been taking advice on the case, from another firm of solicitors for two years. The charges were serious, but the FCA did not pursue them urgently or without notice. The Claimant was interviewed twice under caution in late 2021, but he was not notified that he would be charged until July 2022 and he did not appear in court until 20 October 2022.

18. This left time, between 2020 and 2022, to discuss the funding of the case. At the outset the Claimant advised the Defendant that he had instructed a third-party funder, Mr Stephen Dando ("Mr Dando"). The engagement letter was drafted to reflect this and was in fact signed by both Mr Biggar and Mr Dando, who undertook responsibility for payment of the Defendant’s bills.

19. Mr Dando contributed £11,845.20 to the Defendant’s costs, but in May 2021 terminated his funding. The Claimant then advised the Defendant that his estranged wife, Bridget Biggar, would fund the litigation in Mr Dando's place.

20. Ms Biggar contributed £10,000 in October 2021 but was unable to provide further funding.

21. In June 2022, the Claimant and the Defendant discussed funding from a Mr Webber of Sterling Global Investments LLC. Mr Ryan met Mr Webber, but funding was ultimately not forthcoming.

22. In or around October 2022 Mr Ryan was advised that Ms Calley Edmond of Anglo Swiss Advisory Limited would make funding available on the Claimant’s behalf. It was at about this time that the Claimant was summoned to appear in court for the first time, and Mr Ryan was focused on making sure appropriate funding was in place in light of the impending court deadlines.

23. Ms Edmond wrote to Mr Ryan on 14 October 2022 explaining the proposed basis of that funding. Mr Ryan says that when he discussed the matter with Ms Edmond, he made her aware that it could cost approximately £1 million to properly fund the Claimant’s defence.

24. Ms Edmond’s letter of 14 October 2022, in so far as pertinent, reads as follows: “I represent a group of funders who have been asked to make funding available to your firm in respect legal fees in connection with proposed litigation against Mr. Allan Biggar by the FCA. Funding subject to our group being able to liquidate sufficient shareholdings over the next 12 months. An agreement has been signed with Rapid Nutrition Plc whereby subject to completion this week of a parallel transaction a total 9,000,000 ordinary shares in Rapid Nutrition plc will be deposited with us by 31st October 2022 and we will receive a royalty estimated at £300,000 per year on sales made by FFS Limited a company being acquired by Rapid Nutrition plc this week. In another transaction a 3,000,000 ordinary shares in Gentlemen's Equity SA (in January) both trading on Euronext. We will confirm these stocks have been received at the time and evidence such by way of stock certificates. That stock has been earmarked to cover the payment to your firm to be liquidated over a period of 12 months on the open market or privately at our discretion in order to release sufficient fewer dealing fees and our agreed fees to realise at least €1,320,000 over that period to be distributed as cash is received to your client account. That amount will then be deposited as cash becomes available into you client account. We have agreed to use its best efforts to achieve the maximum share price and aim to use as few shares as possible to achieve the target. Any excess shares not sold to meet the target shall be held subject to further agreement as to distribution. It is our and Mr. Biggar's understanding that notwithstanding the current balance due that only work will only be undertaken by you in proportion to funds already deposited i.e we must place sufficient funds with you for the work to be commenced albeit in phases. Subject to the market we expect to release £100,000 net by end November 2022 in order to clear Mr. Biggar's historical debt with you. We understand Mrs. Biggar has paid you in the meantime £14,500 of the £20,000 plus VAT due regarding assistance with the hearing next week. Mrs. Biggar informs us that she will pay £5,500 to you by the time of the hearing and we will pay the £4000 VAT due by the end of this month (October). £200,000 again subject to the market will be made available and deposited with you by end December 2022 followed by monthly payments as cash in received with a view to providing a minimum of £250,000 per quarter being due on or by March 31st, June 30th, September 31st and December 31st, 2023 Mr Biggar and all concerned understand that you require funds to be on deposit in advance of work undertaken and that the total amount required is subject to the provisions of estimates and is subject to how the case develops.”

25. The letter was marked as copied to Bobby Gill of GC Wealth, to whom Mr Ryan also spoke and who appeared to Mr Ryan to be an intermediary or broker of some sort. Mr Ryan was now confident that the case would be properly funded, but the funds promised by Ms Edmond were never received.

26. At the beginning of December 2022, Ms Edmond promised an immediate payment of £100,000, but no such payment was made.

27. In January 2023, Mr Ryan wrote to the Claimant expressing his concern that payment had not been received in accordance with the letter of 14 October 2022. On 6 March 2023, Mr Ryan notified the Claimant that he had received from the FCA around 5,000 documents, which he had not yet reviewed, with more to come. He added: “However this does underline that we are getting to the business end of the case and that we will now have to make start making some significant decisions (do we make a dismissal application; what is the content of the defence statement going to be) and we should really be engaging counsel to assist with these important decisions, as well as appearing at the next hearing. To achieve that, and be properly ready for 31 March, we will need to have all outstanding debt cleared and be put in funds to instruct counsel and to cover our work. I note that if the terms of the funding letter had been adhered to we would be paid £550,000 by the end of March which would clear the debt and put us properly in funds for the next stage of the case. However as things presently stand we have only received £12000, which leaves a debt of around £87,000. So in summary this is now critical, so can you please let me know where we are.”

28. On 7 March 2023 Mr Ryan wrote to the Claimant: “…If funding will come on stream soon we can probably deal with that (by the way would you rather I discussed funding with Caley I am never quite clear who to go to on funding issues), but if it is never going to happen then now is probably the time to move and yes I can recommend a firm to take over. Although a handover is not straightforward when fees are outstanding, as the firm will require a written agreement in relation to the settlement of outstanding fees and probably some form of security, and you would have to deal with somebody else on that, as it is out of my hands.”

29. The Claimant replied on the same date: “… Let me talk to Caley and also see whether this damn share deal closes. I’d rather of course stay where we are. I value your guidance and as we’ve said before when liberty is at stake its not a time to go for the cheapest. I’m assuming we needed spend a fortune on the 31st if we don’t want to or haven’t it in the bank by then…”

30. One of the documents exhibited to Mr Ryan’s witness statement is an attendance note of the meeting on 24 April 2023, in which the management of the Claimant’s defence was discussed in some detail. The note records the Claimant promising a payment of £20,000 that week, with another £80,000 expected to be “settled” in May; that the Claimant would put the Defendant in funds before any work was undertaken; and that the Claimant would “then collate all the money by the Autumn for us then to do the work”. A schedule of bills and payments incorporated into Mr Ryan’s statement indicates that no such payments were received. The only payment received by the Defendant after April 2023 was £5,000 5 June 2023.

31. The note of the meeting on 24 April 2023 also records Mr Ryan’s advice to the effect that an application to dismiss should not be made, as there was a case to answer, and that the Claimant agreed that there was a case, to which he said he had an answer.

32. Mr Ryan says that he spoke with Ms Edmond on 22 June 2023, and she confirmed that funding of £20,000 per month would be available from July 2023 onwards. By 19 July 2023 she had confirmed, says Mr Ryan, that instalments of £25,000 would be paid at the end of each month until the Defendant’s bills were settled in full.

33. On 19 July 2023, the Claimant and the Defendant entered into a written agreement in which the Claimant acknowledged a debt of £101,137.42 to the Defendant, representing the outstanding balance of the Defendant’s bills. The agreement continued: “… As of today's date, there is currently work in progress (WIP) of £810 (plus VAT). This will be invoiced at the end of the month, together with any further WIP incurred to the invoice date… … Mr Biggar will now be moving to a Legal Aid firm and no further fees will be incurred… …It was expected that Mr. Biggar would fund the matter and settle outstanding fees by way of a group of funders in an agreement dated 14 October 2022. However, this agreement was not followed, for reasons that Howard Kennedy understand related to the underlying transaction… … A number of further funding options have been suggested but none have been honored… … A payment plan was communicated to Howard Kennedy by Caledonia Edmond of Anglo Swiss Advisory on 10 July 2023 in which it was agreed that payments of £25,000 will be made at the end of each month until the debt is cleared… … If any of these payments are late or missed the Outstanding Debt will be transferred to Howard Kennedy's enforcement team without notice to Mr Biggar and all necessary steps will be taken to secure repayment… … Howard Kennedy understands that Mr Biggar does not currently have sufficient liquidity to pay the Outstanding Debt and that he intends to raise funds through a funder (via Caledonia Edmond)... … However, Mr Biggar is ultimately directly responsible for the Outstanding Debt to Howard Kennedy… If Mr Biggar has the financial resources to make payment of the Outstanding Debt, he will do so promptly.”

34. Payment was not made on behalf of the Claimant in accordance with the terms of the July 2023 agreement. None of the payments promised by Ms Edmonds were ever forthcoming.

35. On 22 May 2024, the Defended issued proceedings against the Claimant in the County Court for an unpaid balance of fees totalling £102,109.40, plus interest. The Defendant filed a defence, dated 23 July 2024, which read: “The Defendant contests that the total sum invoices is unreasonable in amount and level of fee earner employed… The Defendant further contends that proper estimates of costs to be incurred were not provided and increases in charging rates were not notified to him… The Defendant seeks an order for the detailed assessment of the Claimant’s invoices delivered between 29 September 2020 and 28 July 2023 under the provisions of the Solicitors Act 1974 .”

36. About six months later, on 9 January 2025, the Claimant made his Part 8 application at the SCCO for the assessment of the Defendant’s bills. On 15 January 2025 HHJ Evans-Gordon stayed the County Court proceedings pending the conclusion of the claim for assessment. The Claimant’s Evidence

37. The Claimant says that when he instructed the Defendant, he was not familiar with legal proceedings and really vulnerable. He found himself in a very difficult situation where he was desperate for help. The estimate incorporated in the Defendant’s engagement letter of 12 June 2020 (£10,000-£15,000 plus VAT) is the only estimate he received from the Defendant.

38. The Claimant says that it is difficult to overstate the importance and significance of that estimate, due to the restraint order in place and the funding position. He understood that he would be able to rely on the estimate as being accurate, and did rely upon it. Despite the estimate, he received 19 invoices totalling £195,954.20 between 29 June 2020 and 23 July 2023.

39. The Claimant gives a similar account of his attempts at raising funding to that of Mr Ryan, including that in October 2022 Anglo Swiss Advisory Ltd, through Ms Edmonds, agreed to fund his defence up to at least €1,320,000 subject to the sale of various investments.

40. The Claimant says that his principal concern was to ensure that the Defendant kept working for him, as the Defendant was particularly encouraging in advising him that there were real prospects of convincing the FCA that it should not proceed against him (this is specifically denied by Mr Ryan, who says that if that had been his view, he would have ensured that written representations were made against the charges).

41. Because of that, the Claimant says that he paid less attention to the bills delivered than to seeking support to ensure he could continue to retain the Defendant. He was also anxious to persuade the Defendant to release its files to his legal aid solicitors, Blackfords, to assist with his defence (which they declined to do) and thought to contest the bills would be detrimental to that.

42. The Claimant did not make an immediate application for assessment because he was depressed, had no third party funding options available to him and was trying to focus on the forthcoming criminal trial and helping to ensure that Blackfords were properly instructed, a task made more complicated by the Defendant’s refusal to release its files.

43. The funding position, says the Claimant, has changed only this year in that he has obtained the support of a third party which has agreed to meet the costs of these proceedings and the Defendant’s County Court claim. Having been on trial in the Crown Court for the past seven months, he has been able to concentrate on little other than the criminal trial.

44. As to payment, the Claimant’s position is that none of the payments made on his behalf were made in respect of specific invoices but simply as payments as and when he was able to obtain third party funding. At no time was he aware that any specific bills had been discharged with the monies paid. The Claimant’s Submissions

45. Mr Mason, for the Claimant, refers me to paragraph 13 the judgment of Lewison J (as he was then) in Falmouth House Freehold Co Ltd v Morgan Walker LLP [2010] EWHC 3092 (Ch): “whether special circumstances exist is essentially a value judgment. It depends on comparing the particular case with the run of the mill case in order to decide whether a detailed assessment in the particular case is justified…”

46. Mr Mason also refers me to a number of decisions by Costs Judges, none of which are authoritative as such. They include my own judgment in Raydens Ltd v Cole [2021] 7 WLUK 539, in which I expressed an understanding of relevant principles which seem to me to have some bearing on this case.

47. For that reason I will repeat, for ease of reference, what I said at paragraphs 18 and 20 of that judgment: “Special circumstances do not have to be exceptional circumstances. They can be established by something out of the ordinary course, sufficient to justify a departure from the general position under section 70 of the 1974 Act (Sales LJ in Stone Rowe Brewer LLP v Just Costs Ltd [2015] EWCA Civ 1168 , at paragraphs 66 and 69, and Costs Judge Rowley in Masters v Charles Fussell & Co LLP [2021] EWHC B1 (Costs) at paragraph 60)… In many ways, a helpful test is to consider whether there is something in the fees claimed by the invoices, or in the circumstances in which they were charged, which ‘call for an explanation’. If they do call for an explanation or further scrutiny, that is a strong indication that there should be an assessment. This is not the time for the explanation to be given and evaluated in detail. That is the purpose of the assessment procedure and the scrutiny it provides.”

48. Mr Mason submits that this is exactly the kind of case where the Court should grant an order for detailed assessment on the basis of special circumstances. The Defendant entered into the Retainer with the Claimant knowing that the Claimant was bound by a restraint order. The Defendant subsequently issued proceedings against the Claimant for unpaid invoices. That is outside the ordinary run of cases and the restraint order, on its own, is a special circumstance sufficient to justify an order for detailed assessment.

49. With regard to estimates, Mr Mason refers me to Wong v Vizards [1997] 2 Costs LR 46, Mastercigars Direct Ltd v Withers LLP [2007] EWHC 2733 (Ch) , Reynolds v Stone Rowe Brewer [2008] EWHC 497 (QB) and Harrison v Eversheds [2017] EWHC 2594.

50. By reference to those authorities, Mr Mason submits that on an assessment, the ultimate question is the sum which it is reasonable for the client to pay, having regard to the estimate; the Court should determine whether the client relied on the estimate and how the client relied on the estimate without an elaborate and detailed investigation; the client does not need to prove that they would have acted differently had an accurate estimate been provided, only that he had an opportunity to do so; and that the more significant the deviation from estimate, the greater the explanation required.

51. Mr Mason refers me to the Claimant’s evidence as to his state of mind he instructed the Defendant, and as to his reliance upon the Defendant’s June 2020 estimate. Such a significant deviation, he says, does call for an explanation and itself establishes special circumstances.

52. There is also the fact that the Defendant has been subjected to a very long-running criminal trial, something which again, Mr Mason submits, means that this is not a run of the mill case. The Defendant’s trial began in September 2024 and was still continuing on 2 May 2025, when the Claimant gave his witness statement in these proceedings. The time limit for him to challenge at least some of the Claimant’s bills without establishing special circumstances expired while he was focused on the prosecution.

53. As for the payment of bills, Mr Mason refers me to Menzies v Oakwood [2024] UKSC 34 . Mr Mason submits that payment, for the purposes s70(4) of the Act , requires that a client be informed of and agrees to the specific amount in respect of which payment is to be made against a bill. The Defendant can say only that unilateral notification was given to the Claimant that funds received would be applied to its oldest invoices. That, by definition, is not an agreement to the specific amount of the invoice. The Defendant’s submissions

54. Mr Benson, for the Defendant, submits that the Claimant was always well aware of the Defendant’s bills. He paid some of them in full, affirmed the remainder in writing, and now advances only vague, generalised complaints in order to delay payment. The policy underpinning the solicitor/client assessment regime is swift and efficient scrutiny of costs where a client has a genuine grievance. It is not intended to provide a debtor with breathing space years later in order to defer the inevitable. That is the purpose of the Claimant’s application.

55. With regard to the payment of bills, the Claimant says that he was not paying specific bills but just making payments generally when able to, and that he was at no time aware that specific bills had been discharged. That is not the relevant test. The Supreme Court in Menzies v Oakwood made it clear that payment is made when there is agreement as to payment. That can be express or inferred from conduct.

56. The table of bills and receipts incorporated within Mr Ryan’s witness statement shows that the Defendant’s first bill was paid in a lump sum a few days after issue. It was, accordingly, clearly agreed.

57. The second bill was issued on 30 July 2022 and the third on 26 August 2020. They were paid in a series of small payments over a prolonged period. Those payments were not accidental or mechanical. Rather, there was a conscious, deliberate process on the Claimant’s part of instructing the Defendant, benefitting from the work, receiving detailed bills, having a proper chance to consider them and making substantial efforts over years to raise funds to meet them.

58. There is no realistic basis for the Claimant to argue he did not pay the Defendant’s first three bills. His suggestion that he was paying “generally” without knowing which invoices were discharged is irrelevant. The test is whether he acted in a way that constitutes agreement to pay, and he did.

59. With regard to special circumstances, Mr Benson submits that the Claimant had plenty of opportunity, during and after the retainer, to consider the Defendant’s bills but did not challenge them until he faced no alternative if he wanted to resist judgment.

60. As late as March 2023, the Claimant was making it clear to Mr Ryan (in his email of 7 March) that he wanted to continue to instruct the Defendant and that he was willing to pay its fees, rather than choose a less expensive alternative. In July 2023, by which point it was agreed that a new firm would be instructed, he acknowledged his indebtedness to the Defendant and entered into an agreement to repay in instalments.

61. The Claimant’s attempt, now, to build a case on the estimate comprised in the June 2020 letter of engagement is artificial. It was, expressly, a preliminary estimate and could never have been understood by him to be complete. The Defendant’s first bill (for £11,485.20, 29 June 2020) was within the estimate, and work then continued. His attempts to raise to raise €1.3 million shows an understanding that seeing off a determined public authority investigating serious criminal wrongdoing would be expensive.

62. The reality, says Mr Benson, is that the Defendant extended considerable forbearance, acting for a long time despite overdue bills, and the Claimant was rightly grateful for the help received. He never raised any query about the bills, despite being fully aware of them. The bills referred to a right to seek an assessment and they were accompanied by clear and detailed time-recordings. The bills now being challenged are on the whole very modest and there is no real detail to any challenge. The Claimant is now, cynically, taking vague and generalised points an excuse to defer having to pay. Conclusions as to Payment of Bills

63. At paragraph 71 of his judgment in Menzies v Oakwood Lord Hamblen summarised the principles in this way: “In summary, the authorities show a long established understanding as to what payment by deduction or retention requires in this context both generally and with specific reference to section 70 and its statutory predecessors. The need for a settlement of account has been consistently stated in cases from In re Bignold in 1845 to Harrison v Tew in 1987. This requires an agreement to the sum taken or to be taken by way of payment of the bill of costs. Such an agreement may in an appropriate case be inferred from the parties’ conduct and in particular from the client’s acceptance of the balance claimed in the delivered bill. The authorities therefore provide strong support for the Client’s case of the need for an agreement as to the amount to be paid in respect of the bill of costs and that mere delivery of the bill does not suffice.”

64. In Menzies v Oakwood solicitors had deducted the amount of their final bill from damages upon rendering that bill, passing the balance of damages on to the client. Although that was consistent with their terms of retainer, the deduction from damages was a fait accompli and could not establish agreement by the client to the sum taken in payment.

65. A principle established by Menzies v Oakwood , as I understand it, is that (as the client in that case put it, and as summarised at paragraph 29 of the judgment of Lord Hamblen) agreement is necessarily a reactive process to a demand made in the bill. The client needs to have been informed of and have provided agreement to the amount in respect of which the solicitor intends to take payment.

66. I can, however, find nothing in Menzies v Oakwood that requires, in order to establish the client’s agreement, the degree of exactitude contended for by Mr Mason, which to my mind would create an artificial, impracticable standard of particularity.

67. The Claimant received the Defendant’s bills and, from time to time, made arrangements for the Defendant to receive payments against the outstanding balance of those bills. That constituted an agreement to pay. It was not necessary for him to agree to the allocation of specific sums against specific bills. It was open to him to leave that to the Defendant, as, evidently, he did. Conclusions as to Special Circumstances

68. Generally, I accept Mr Benson’s submissions as to the merits of and motivation behind this application.

69. I do not find the Claimant’s evidence in relation to estimates to be persuasive. The estimate of costs given in the Defendant’s June 2020 engagement letter was, expressly, a preliminary estimate for reviewing the papers, contacting the FCA and previous solicitors, and giving some initial advice. The Claimant could not ever have believed that the estimate went beyond that, much less that the Defendant could manage the entire case for a maximum of £15,000. His comparison of that initial estimate with the overall billing over a period of three years is, as Mr Benson submits, artificial. If anything, it undermines his case.

70. In the hearing before me, Mr Mason demonstrated that the Defendant’s first two bills indicate that the Defendant’s initial June 2020 estimate was, in respect of the limited work it covered, substantially exceeded. That seems to me to be right, but it does not assist the Claimant. That preliminary estimate was quickly superseded. The bills for the early work covered by it were in any event paid more than 12 months before the Claimant’s Part 8 application was made, and I have no jurisdiction to order their assessment.

71. The real question is the adequacy of the costs information provided for subsequent work, and the conclusions to be drawn from it.

72. It does seem that Mr Ryan and his team did not provide the sort of regular estimates promised in the Defendant’s June 2020 engagement letter. On the evidence, except insofar as it was necessary to estimate future costs for the purposes of obtaining funding, the Claimant was kept informed of accruing costs by the rendering of regular bills in arrears, rather than by estimates in advance.

73. I have seen nothing however to suggest that if the Claimant had been provided more advance costs information than we did receive, he would have done anything differently. All the evidence is to the contrary. In March 2023, when (on the evidence) he had already received bills to the value of over £170,000, he made it quite clear to Mr Ryan that he preferred to continue to instruct the Defendant, rather than turning to less expensive alternatives.

74. I do not accept the Claimant’s evidence to the effect that he continued to instruct the Defendant because the Defendant led him to believe that there were real prospects of convincing the FCA that it should not proceed. This is denied by Mr Ryan, whose evidence, where it conflicts with the Claimant’s, I prefer to that of the Claimant. That is because Mr Ryan’s evidence on this and other points is both inherently credible and consistent with the records I have seen, and the Claimant’s less so.

75. I do accept that when considering whether a solicitor’s costs should be limited by reference to inadequate or non-existent estimates of future costs, the court can take into account that a client, in consequence, lost the opportunity to make different, less expensive choices.

76. It does not follow that a client who, on receipt of better estimates, quite evidently would have made exactly the same choices can still make a credible case for limiting the solicitor’s costs. That seems to me to be the Claimant’s difficulty.

77. All that aside, by June 2022 the Claimant evidently understood that if he were to continue to instruct the Defendant to conduct his defence, he would need to raise at least €1,320,000. If he had ever harboured any misconception as to the likely cost of instructing the Defendant to conduct his defence, it had clearly been superseded by then. The Claimant’s preference was to continue to instruct the Defendant notwithstanding that potential cost, and he continued to do so for another year. It was only because he could not secure third party funding that the retainer ended in July 2023.

78. In summary, I am not persuaded that the Claimant has established a potential case on estimates sufficient to establish special circumstances.

79. When considering the other arguments advanced by the Claimant for a finding of special circumstances, I bear in mind that the Claimant was advised from the outset about his right to challenge the Defendant’s bills, and of the fact that that right was subject to time limits. He was reminded of that every time he received a bill. At no point, until he finally had to defend a claim for outstanding fees, did he ever express any dissatisfaction with the amount of the Defendant’s bills. On the evidence, he did not take issue with them at all until the Defendant finally took proceedings for enforcement.

80. I am not persuaded that the restraining order, the enforcement action taken by the Defendant or the criminal trial establish special circumstances. The Claimant faced a substantial corporate fraud prosecution. Mr Ryan is a specialist in defending such prosecutions. Neither the prosecution itself, nor the instruction of as solicitor with the necessary expertise to defend it, seem to me to establish special circumstances.

81. Nor do I accept that either the fact of the prosecution or a hope of obtaining papers from the Defendant can explains the lengthy delay on the Claimant’s part, between July 2023 and January 2025, in applying for an assessment of the Defendant’s bills. The Claimant’s trial did not start until September 2024.

82. As for the lien, the Claimant had been advised at the outset that the Defendant would claim a right to retain papers if bills went unpaid. It is wholly unsurprising, when promises of payment were not met, that the Defendant chose to exercise that right. It is hard to see how the Claimant could realistically have delayed making an application to assess over 17 months in the hope that the Defendant would take a different view.

83. With regard to the restraining order, such orders are not unusual in substantial fraud prosecutions. Both parties entered into a contract of retainer on the understanding that the restraining order was in place and that it would be necessary for the Claimant to secure third party funding for the Defendant’s fees.

84. It was a condition of his agreement with the Defendant that the Claimant would remain personally responsible for those fees, and that if they were not paid, the Defendant could take legal action to recover them. There is nothing unusual about any of that, or the fact that the Defendant, long after promises of payment were repeatedly and consistently broken, eventually took such action as it could to recover them. It seems to me that the Defendant’s conduct, throughout its dealings with the Claimant, was entirely reasonable.

85. This leaves the Claimant’s complaint about the Defendant’s failure to notify him of increases in hourly rates. The Defendant did indeed undertake to notify him of such increases, although notification was not a precondition of the Defendant’s right to charge accordingly and the Defendant reserved the right to notify the Claimant of such changes after the event.

86. In that respect I have noted that each of the Defendant’s invoices was accompanied by a breakdown identifying every fee earner for whom charges were rendered, along with that fee earner’s hourly rate. It would follow that the Defendant has complied at least with the letter of its obligation to notify the Claimant of any increased hourly rates.

87. I accept that a specific letter or email notifying increases would have been more courteous and more in keeping with the spirit of the parties’ agreement. I have seen only one such notification, given by Mr Ryan’s colleague Lian Gunn on 3 May 2023, but I have not identified any basis upon which the Claimant could dispute his contractual obligation to pay hourly rates increased from time to time in accordance with the terms of the Defendant’s retainer.

88. If there were such a basis, it would be open to the Claimant to take the point in the County Court proceedings. It would not furnish a justification for ordering a complete assessment of the Defendant’s bills.

89. For all of the above reasons, I will dismiss the Claimant’s Part 8 application.