Summary

Senior Courts Costs Office

1. On 17 December 2024 the Claimant filed an application for the assessment of a series of invoices rendered to the Claimant by the Defendant between 10 December 2022 and 17 September 2024. The invoices were rendered in US dollars and, inclusive of disbursements, came to US $35,343,213.96. They represent work undertaken by the Defendant for the Claimant pursuant to a contract of retainer ("the Engagement Letter") entered into by the parties on 2 September 2022 and subsequently amended. The claimed, unpaid balance of the invoices is US $18,923,316.10.

The Issues to be Addressed in this Judgment

2. The parties have identified a number of preliminary issues to be determined for the purposes of the Claimant's application, and a consent order dated 5 March 2025 provided for the hearing of those issues.

3. Under the heading "The Nature of the Retainer" they are:

(a) Does the Engagement Letter dated 2 September 2022 constitute a contentious business agreement within the meaning of section 59 of the Solicitors Act 1974?

(b) If it does, was it fair and reasonable (and should it therefore be enforced or set aside)?

4. Under the heading "The Status of the Invoices" they are:

(c) Was the Defendant entitled to deliver interim statutory bills to the Claimant under the terms of the Engagement Letter?

(d) Did the Invoices, as delivered, amount to interim statutory bills (compliant with the express and implicit requirements of such bills)?

(e) In light of the answers to the above questions, when were the invoices (individually or collectively) delivered to the Claimant as a statutory bill or bills for the purposes of the Solicitors Act 1974?

5. Under the heading "Entitlement to Assessment" they are:

(f) When and to what extent have any statutory bills been paid for the purposes of s.70(4) of the Solicitors Act 1974 (if at all)?

(g) To the extent required, are there special circumstances to justify an order for assessment of the Invoices pursuant to s.70(3) of the Solicitors Act 1974?

(h) In light of the answers to all the questions above, should the court make an order for assessment of all or any of the Invoices, pursuant to the applicable provisions within Part III of the Solicitors Act 1974?

(i) If an order for assessment is to be made, should it be made subject to any conditions?

6. The parties' positions on each of the above issues have been set out in Statements of Case, served under the terms of the consent order of 5 March 2025, as expanded upon by the detailed submissions of Mr Bacon KC and Mr Teasdale for the Claimant, and of Mr Mallalieu KC for the Defendant. For simplicity's sake I will refer to their submissions as those of the Claimant and the Defendant.

7. Those submissions have been of great assistance to me and I am (as ever) grateful to counsel for that assistance. In conjunction with the statements of case they do, on necessity, cover a lot of ground. I have attempted to reproduce both the Statements of Case and the submissions as comprehensively as is necessary to understand each party's case, but I believe that I have taken account of everything that has been said on behalf of each party (including case law), whether I specifically refer to it or not.

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Summary of Key Conclusions

416. The Engagement Letter between the Claimant and the Defendant, as signed on 2 September 2022 and amended on 25 September 2023, was not a Contentious Business Agreement (CBA). Its unilateral, open-ended provisions for hourly rate increases, the amounts and timing of which were entirely at the discretion of the Defendant, are inconsistent with the requisite characteristic of certainty.

417. If I had found that the Engagement Letter was a CBA, I would have set it aside as unreasonable because it incorporated those unilateral, open-ended review provisions whilst (as a CBA) preventing the Claimant, on any assessment, from challenging any increased hourly rates, whatever they might have been.

418. The Engagement Letter did allow for the Defendant to deliver interim statutory bills to the Claimant in the course of the Defendant's retainer.

419. The invoices actually delivered were not, however, interim statutory bills, because they lacked the requisite element of finality.

420. The invoices collectively, as a series, comprised a single Chamberlain bill delivered to the Claimant by the Defendant on 17 September.

421. The Claimant's application for detailed assessment having been made on 17 December 2024, this court has jurisdiction to order an assessment of the Chamberlain bill under section 70(2) of the Solicitors Act 1974.

422. Given that Defendant's invoices were not interim statute bills, it is not necessary for the Claimant to establish that special circumstances justify an order for assessment of such of them as would otherwise have fallen within section 70(3). If it had been necessary, I would have found that special circumstances do apply.

423. I find it to be appropriate to make an order for assessment, under section 70(2), of the Chamberlain bill delivered by the Defendant to the Claimant on 17 September. I do not find it to be appropriate to attach any conditions to that order.

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