11 July 2022

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Costs judge strikes out claim for detailed assessment despite solicitors saying invoice was not final bill

Master Rowley found section 70 was engaged, deadline was missed and there were no “special circumstances” to save claim

Email from legal marketing company went into junk

A costs judge has ruled that there were no special circumstances to save a personal injury victim’s claim for assessment of his legal bills from being struck out because it was brought too late.

However, Master Rowley rejected a claim by Wise Solicitors that the bills emailed to Andrew Sweeney were not final bills and so were not capable of assessment.

Mr Sweeney instructed the York firm after an accident at work in September 2019. His employer made two interim payments totalling £3,000 during the course of his claim and paid a further £10,000 at the conclusion.

Simon Wise, senior partner of Wise Solicitors, charged a success fee of £3,250, based on 25% of the total damages of £13,000. Mr Sweeney said he thought a success fee should only be charged on the £10,000, reducing it to £2,500.

Mr Wise sent a letter by email explaining that the cost of an after-the-event insurance premium of just under £320 would be deducted too. Invoices were attached to the letter, along with a form of authority enabling the money to be paid to Mr Sweeney by BACS.

Master Rowley said the law firm argued that final statute bills had not been delivered to the client; rather, the aim had been to help the claimant better understand the position on the deductions.

The claimant argued that the invoices had been neither signed nor delivered in accordance with section 69 of the Solicitors Act.

But the judge said section 69 did not apply in a case where an application for an assessment was made by a client. The point of the requirements in section 69 was to “restrict a solicitor’s ability to bring proceedings for the recovery of fees until the client has been afforded an opportunity to take advice and/or reach a compromise”.

In the case of an application by a client, section 70 applied. “Where, as here, the client is in possession of invoices which are ostensibly suitable for assessment under the Act, the absence of a signature by the solicitors seems to me to be of no consequence.”

Master Rowley said that, although each invoice was described as a “tax invoice”, there was “no suggestion” that the format of the invoices did not amount to a statute bill.

“Once the client understood the figures, the expectation was clearly that the money held on client account could be transferred to pay the invoice already raised in this matter. I consider it to be unarguable that the tax invoice can be described as anything other than a demand for payment in the form of a final bill.”

Mr Sweeney had signed a form of authority for the solicitors to deduct their costs from his damages even though he still disputed them. He said this was because he needed the money to pay off debts.

His counsel argued that his agreement was void, because he was not advised to take independent legal advice and he then took steps to make the contract void by talking to a legal marketing company that offered to help people challenge deductions from their damages. As a result, it was argued, the bills had not been paid within the terms of section 70.

Master Rowley rejected this too. The claimant had tried to “reopen the bargain he had struck with Mr Wise” and there was nothing to suggest that the authority was returned because of the pressure to pay debts straightaway.

“But the claimant’s concern relates to the amount of the money available to pay other people rather than the speed with which it was required. The overwhelming impression is that the claimant simply wanted to hold onto as much of his damages as possible because he was not satisfied with the end figure.

“That view might be entirely reasonable in itself but it does not support an argument that the claimant was pressured into authorising the solicitors to retain monies from the damages.”

Having ruled that section 70 was engaged, the judge said the invoices were delivered to the claimant on 26 July 2021, meaning he needed to commence proceedings by 25 August.

Mr Sweeney was in contact with the legal marketing company on the same day as the invoices were sent. But its reply went into his spam email and he took no further action until September.

Master Rowley found no special circumstances to allow Mr Sweeey to have his bills assessed out of time. “The fact that the claimant initially acted with alacrity in contacting the legal marketing company does not seem to me to assist the claimant.

“If he had continued to act with any sort of promptness in following up his initial enquiry, then proceedings could have been commenced within the one-month time limit provided for by the Act.”

He went on: “Sometimes a client can point to the conduct of the solicitor in some way but there is nothing of that sort indicated here.

“On other occasions, the nature of the bill is said to ‘call for an explanation’ because of its size or some other facets of it. But again, the claimant has been unable to point to anything of this nature.”

Shoshana Mitchell (instructed by JG Solicitors) for the claimant. Martyn Griffiths (instructed by Kain Knight (North & Midlands) Ltd) for the defendant.