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You are here: BAILII >> Databases >> England and Wales High Court (Senior Courts Costs Office) Decisions >> Evans v Acuity Law Ltd [2025] EWHC 1661 (SCCO) (20 June 2025) URL: https://www.bailii.org/ew/cases/EWHC/Costs/2025/1661.html Cite as: [2025] EWHC 1661 (SCCO) |
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SENIOR COURTS COSTS OFFICE
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Mr Paul ![]() | Claimant |
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- and – |
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Acuity Law Limited |
Defendant |
____________________
Dean O'Connor (instructed by Acuity Law Limited) for the Defendant
Hearing dates: 05/03/2025
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VERSION
OF JUDGMENT APPROVED
Crown Copyright ©
Costs Judge Nagalingam:
Mr Carlisle's submissions
Disclosure
Points of Dispute
Estimates
Matter 2
Matter 3
Termination
"13. A solicitor's retainer to conduct litigation is an example of what, although known as an "entire contract" , is better described as involving an "entire obligation": seeVlamaki
![]()
v
Sookias and Sookias [2015] EWHC 3334 (QB); [2015] 6 Costs LO 827 at paragraph 10. The "entire obligation" is, in effect, a condition precedent which must be satisfied before remuneration can be claimed: a solicitor can generally only claim remuneration when all work has been completed, or when there is a natural break. That, however, is subject to a common law exception and to any agreement to the contrary."
"19. In Underwood, Son & Piperv
![]()
Lewis
[1894] 2 QB 306 the Court of Appeal discussed the circumstances in which a solicitor may be entitled to terminate a retainer. Lord Esher MR noted that there may be cases in which a solicitor was entitled to say that the retainer must come to an end. He added:
But it has been held that in such a case a solicitor cannot throw his client over at the last moment which might be ruin to the client, and, even though the solicitor may have good cause for declining to act further for the client, he must give him reasonable notice of his intention to do so."
"22. It is not disputed by the firm that the same principles apply to the termination provision in the retainer. It is essential that such notice as is given is "reasonable". If the notice is not "reasonable" then the firm cannot point to any applicable provision departing from the general principle that remuneration can only be claimed when all work has been completed, or when there is a natural break. In the absence of reasonable notice, the firm would accordingly be unable to claim for the costs which were sought before the master."
Mr O'Connor's submissions
Matter 2
"In the first instance we have been instructed to write to Ms RhianEvans
and Mrs Patricia
Evans
seeking their undertakings to not sell the
vintage
motorcycle which you claim the ownership of which should have been transferred to you upon completion of the rebuild (the "Initial Stage").
On the basis we have not received undertakings from Mr Rhian Evans
and/or Mrs Patricia
Evans,
we will engage counsel to advise on the merits of pursuing an application for an injunction and making such an application if necessary ("Secondary Stage")"
"As discussed if you apply for an injunction you will have to give a cross-undertaking in damages and therefore it is important for you to have as good a feel as possible as to the strength of a claim before embarking on proceedings, even if that advice is negative. There is I think a risk that counsel will say that any case like this where there is limited documentary evidence (and factoring presumptions) that matters will turn on oral evidence in which case the matter carries considerable risks."
"Several counsel have indicated ability to advise on the claim re Motorbike and Rolex. Costs estimatevaries
from c£1,000 plus
VAT
to £2,000 plus
VAT
depending on level of experience.
Ultimately it is your call as to how much you are prepared to incur to obtain the advice- I would suggest a keen junior is probably best in a case of this nature."
"Given that Ro has now also prepared a detailed letter of claim I need to update you on costs. Work in progress currently amounts to over £5k. However to avoid any duplication between myself and Ro (such as attendance at the conference or reviewing the instructions/letter of claim) I would propose to cap this for the work to date at £3,600. However it isvital
in my
view
to keep a close eye on costs going forward. I will raise an interim invoice shortly, once I have
John
Churchill's fee note.
I appreciate you're an experienced litigator. However even though the sums in issue in this dispute are relatively modest the costs of pursuing your father through to trial is going to be significant (probably outweighing thevalue
of the Bike and Watch). We'
ve
discussed the usual rules on costs (the winning party being entitled to recover their costs from the losing party) but that assumes the losing party is good for the costs order."
"Good to speak just now as per our call in terms of fees they were excluding counsel, who has now come back at £700 plusVAT.
So all told £3,600 plus
VAT
and £700 plus
VAT
which I understand is acceptable, but will provide a revised estimate if we don't get a positive response to the letter of claim."
Matter 3
"In the first instance we have been instructed to file and serve a Notice of acting in respect of the claim (claim no. F0QZ24W7) and assist in dealing with submissions pursuant to the Order of 1 September 2022 (the "Initial Stage"). Against D3 we are awaiting a date for an oral hearing to challenge the Provisional Assessment. Against D1 and D2 you also intend to challenge the Provisional Assessment at an oral hearing."
"In terms of instructing Robert Malvern (sic) KC, that is an option, though the cost benefit of the same is difficult to gauge. Certainly the advice you seem to have obtained re suitable offers from costs lawyers were poles apart from the eventual determination on paper. I am not sure whether you have made any further proposals to those I have seen the costs lawyer suggest from October-December 2021."
"I also reiterated to Paul in the call that whereas he was convinced that there was a significant amount of cost claimed within the Bill of Costs which weren't recoverable under the Cost Order that the Cost Orders themselves appeared fairly broad.
In particular paragraph 2.1 of the Amended Order of June is actually quite broad in that it allows all the costs associated with the claims that are not being pursued and it would seem to me to be quite easy for them to try and hang their hat on matters having some link to claims not being pursued, so if they had to incur whatever costs as a result of the fact that claims weren't being pursued any longer then they could potentially recover the same."
"I repeated the advice I had previously provided to him in general about the position that he found himself in, it being unenviable and difficult when challenging on provisional assessment and there are huge risks involved, in the context of the offers previously made, costs involved pursuing the hearing, and the significant hurdle to overcome (in terms of reduction) to make the challenge worthwhile.
Despite the advice that I have given he is resolved that pursuing oral hearings are necessary in that he is not prepared to compromise. I did say that he had to still consider the cost benefit analysis of matters. He reverted to discuss the advice previously given about Kain Knight about thevarious
offers. I said I was not proposing at this stage to comment on those. Paul had clearly not beaten the Part 36 offers made by our opponents and those made by us fell way short of the mark.
However just because advice had been made where to pitch offers did not necessarily mean that that advice was negligent, but we had to deal with here and now."
"Separately and as you are aware you are of course tasked with beating the paper order on assessment by over 20% otherwise are faced with meeting the costs of the hearing. You are aware that although I was not involved in the substantive dispute and initial advice in relation to the assessment of costs I am gravely concerned, notwithstanding thevalid
points you appear to make concerning the amount of the costs and advice on offers made by your previous representatives Kain Knight and comments made by Nick Isaac KC that you will struggle to beat that at the oral hearing. That is particularly so in circumstances where there are indemnity costs orders in play. I do understand the point you make about the costs' orders being restricted to the five items listed in the Order of August 2021. However, my
view
is that those are broader than you consider. There is also the prospect of the costs assessment in relation to D3 though the basis of assessing the costs D3 were ordered is different (being the standard basis) and therefore there is likely more scope for challenging those costs.
That is important when considering the cost benefit, given that you would be incurring a brief fee of £10k plus VAT
instructing Robert Malvern (sic) KC to attend the hearing- we would need this on account."
"I have tried to call because I was concerned following our call that you are under some confusion about my point about the 'cost benefit' and the costs which flow from the review hearing.
First and foremost, I apologise if you have been somewhat confused by my explanation and my references to cost benefit in the context of Provisional Assessment and the reference to the minimum requirement to beat the costs order by 20%.
I also appreciate and understand your frustration with the process- and have told me on several occasions that you have no intention to pay the Morgans the sum ordered and hoped Robert Malvern KC would be able to chip away at the claim significantly (£30k-£40k)- you know I consider that to be optimistic based upon the information that I have to date, particularly as there are indemnity costs orders in place which are more difficult to challenge (albeit your position is that not all of the costs are covered by those indemnity orders). I am also conscious of your dissatisfaction with the advice provided by Nick Isaac KC (you mentioned pursuing him as you consider to be in a worse position as a result of his advice in particular) and Kain Knight. I understand your frustrations with the previous advice, but you must try and consider the 'hear and now'.
I will try and be clear as I can to avoid any ambiguity on the costs which flow from the review process -
The cost of any case which does not go beyond paper Provisional Assessment is restricted to £1,500 plusVAT
(excluding bill drafting). A Part 36 offer such as the one made by our opponent would not trump that (i.e., the costs of the paper determination on Provisional Assessment)- although of course that does not mean that the other consequences of Part 36 does not apply even on a Provisional Assessment i.e., the additional rate of interest and the uplift of 10% of the assessed costs. In this case they made a Part 36 offer of £47k which has been comfortably beaten on Provisional Assessment.
The costs of the review process is governed by CPR47.15(10) which as you are aware provides that a party which has requested an oral hearing will pay the costs of and incidental to that hearing unless you achieve an adjustment in your favour of 20% or the court orders otherwise i.e., you must beat any review by at least 20% otherwise you would in any event be ordered to pay the costs of the review process i.e., your costs and their costs (which combined will amount to c£30k (you will know from their previous statement of costs amounted to £12k, I anticipate it would have increased somewhat since)), Robert's brief fee alone and written submissions (though arguments can be made about that itself) would amount to c£15k as well as our costs).
To be clear the drafting does not automatically entitle the party that requested the recover their costs i.e., to be clear even if you succeeded in chipping 20% off the bill you would not necessarily recover your costs of doing so (hence the reference to the cost benefit). The court will also consider previous offers made when determining costs of the review process (including the Part 36 offer) – They will say that even if you chip the bill by 20% but not lower than their offer i.e, to say £53k they have still beaten that offer and therefore you should meet the costs (as they will say you could and should have accepted that offer- I appreciate that I understand the advice you had from Kain Knight was that you would beat the offer but the fact is they did). That is why realistically to make it worth your while I suggested you would need to chip away below the Part 36 offer. At that point I think you could reasonably say you have achieved a significant reduction which ought to entitle you to the costs of review hearing (but there is of course no certainty)
It is also why I have always been concerned about the cost benefit of throwing further monies at the review process (and why I have mentioned I was concerned to avoid a situation where you were digging a 'deeper hole' for yourself), in the context of the previous offers made and that the costs of running a review will in any event be significant. I hope this clarifies matters and is why frankly I invariably advise clients to consider commercial resolutions."
Termination
"HR engaged on several telephone calls with Paul and conversations to discuss the present position. I reiterated my cost benefit concerns about the position that Paul was adopting and in particular thevery
significant risk in my
view
in firm likelihood that he would end up in a worse financial position by
virtue
of persisting with the challenge.
This is because he has got to beat the offer by 20% and a part 36 offer to make it worthwhile, which is not an insignificant reduction in the current Bill of Costs. We went back and forth on this saying that the key to costs were not included in the indemnity cost order. I explained I understood the point Paul was trying to get across, but I disagreed with hisview
on the breadth of the Order (it is wider than he considers) and also our opponent will say that the only sums included within the bills are sums they were allowed to claim under the cost order, ie. they don't go outside of the bandwidth of the cost order."
Mr Carlisle
Decision
Disclosure
Estimates
Matter 2
Matter 3
Unusual costs (CPR 46.9)
Termination
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