The time limit to dispute the amount claimed in an outstanding gross sum bill is to be found in section 64(3) of the Solicitors Act 1974 and not section 70, a costs judge has ruled.
Yasin v Whitmore Law Solicitors [2021] EWHC B30 (Costs) was a preliminary hearing of the claimant’s claim for a detailed assessment of a gross sum bill of £68,000 pursuant to section 64(3).
The defendant law firm had already issued part 7 proceedings for recovery of the sums in the bill and argued that an assessment was precluded by section 70.
Master Nagalingam noted that, under the terms of section 64(3), the court has “no discretion but to order that the gross sum bill in question be assessed where, as is the case in this matter, the request is made before the expiration of one month from the service of the originating process (in this case the defendant’s part 7 claim)”.
He continued: “Whilst I acknowledge that section 64(4) recognises that a gross sum bill may be assessed under section 64 ‘or otherwise’, I see nothing in either section 64 or section 70 that would dictate that the time limits under section 70 are imposed on an application for assessment under section 64.
“Further, section 64(4) deals with the situation that arises once the hurdle of ordering assessment has been overcome. It begins ‘If a gross sum bill is assessed…’, and thus is not relevant to the question of whether or not a gross sum bill may be assessed.”
The master said section 70(1) did not apply because more than one month has passed since the bill was delivered; neither did section 70(2), because no application for assessment was made by either party under the provisions of section 70.
“Accordingly, the defendant having elected to delay taking any action to recover their fees, and having at all times elected to deliver and rely on a gross sum bill only, the only time limit which applies is that under section 64(3) of the Solicitors Act 1974 within which the claimant has brought their claim in time.”
Section 64(3) does not specify whether a detailed assessment or an assessment of damages should be ordered.
Master Nagalingam concluded the claimant had a discretionary right to bring their section 64(3) claim under part 8 and so the assessment should be a detailed assessment.
“Further, having concluded I have the discretion to ‘order… otherwise’ pursuant to section 70(9)(b) having taken into account the circumstances of this case, the one-fifth rule shall not apply to the outcome of the assessment.”
Mr Jacob (instructed by Edwards Duthie Shamash) for the claimant. Miss Nash (instructed by Whitmore Law) for the defendant.