COST BITES 228 : DEFENDANT SOLICITOR TO PAY THE COSTS OF THE CLAIMANT ISSUING PROCEEDINGS SEEKING A STATUTE BILL
In Franklin v Your Lawyers Ltd [2025] EWHC 984 (SCCO) Acting Senior Costs Judge Rowley dismissed a defendant solicitor’s argument that it should recover its costs after its former client had issued proceedings seeking the delivery of a statute bill. The claimant had acted wholly reasonably and given the defendant an adequate opportunity to respond. The defendant could not have been surprised that proceedings had been issued. Further there was no explanation from the defendant for the delay. The defendant was ordered to pay the claimant’s costs on the standard basis.
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“I do take the view that the communications show the defendant in the worst light. Having not explained why a final statute bill was not forthcoming prior to proceedings being commenced, the defendant filed an acknowledgement of service objecting to an order for a final statute bill but then ignored requests to explain the basis of that objection. Vague comments regarding the narrowing of issues in consideration of offers appeared to be little more than an attempt to secure sufficient time to produce a final statute bill. If that is correct, it is not obvious why that could not be communicated in open correspondence. But if some other consideration was taking place during that period, there was still no reason why the defendant’s position could not have been set out.”
KEY PRACTICE POINT
A client is entitled to a statute bill. A solicitor who fails to provide a bill timeously after it is requested is unlikely to find favour with the court. There is no obligation upon the former client to continue to chase for the bill. The sensible course is, of course, to provide the statute bill immediately the proceedings end.
THE CASE
The claimant was a former client of the defendant solicitors and they acted on his behalf in a personal injury claim. At the end of the action the defendant did not send a final statute bill to the claimant. The claimant instructed a new firm who wrote asking for a final bill. There was a request for a signed authority from the defendant. Thereafter a bill was not produced. The claimant issued proceedings seeking delivery. After the issue of proceedings the defendant produced a final statute bill.
THE DISPUTE – WHO SHOULD PAY THE COSTS OF THIS ACTION
The judge noted that it was unusual for there to be a dispute about who should pay.
“8. In my experience, where this sort of history of events has occurred, it is invariably the case that the parties either reach an agreement on the defendant paying the claimant’s solicitors’ costs or there is an agreement to paying them in principle and there is then an assessment of the quantum which could not be agreed.”
However in this case the defendant did not agree that it should pay the costs, rather it argued that the claimant should pay the defendant’s costs.
THE JUDGE’S DECISION – THE DEFENDANT IS PAYING THE CLAIMANT’S COSTS
The defendant argued that the claimant’s letter did not give any indication that litigation would follow if there was not compliance. The defendant argued that, rather than litigation being a last resort, the claimant had adopted it as the first option.
THE MYSTERY AS TO WHAT WAS IN THE DEFENDANT’S MIND
25. However, what was in the defendant’s mind remains a mystery since Mr Plemper has not said anything in any of his three witness statements about why no response was given to Mr Green following receipt of either the email of 25 September or the letter of 15 October.
26. In my judgment, the seven day letter has to be seen in the context of the previous two requests. I do not accept Mr Mason’s argument that if the letter is written politely and does not demand the document without threatening court proceedings, the potential for litigation is not in the background. The defendant as a firm of solicitors ought to appreciate that more than any other defendant. There having been no substantive response to two letters requesting the bill, it seems to me that a seven day letter was entirely sufficient. I would have come to this conclusion in any event, but as Mr Simpson was able to demonstrate, in another case the seven day letter elicited a response from the defendant with an indication of when the bill would be produced and that production duly occurred within the timescale offered.
27. In terms of communicating in accordance with the protocol, it seems to me that only the claimant has complied with the protocol in setting out the information that was required for the defendant to understand the claimant’s position. Given the simplicity of the request for a statute bill, I would have expected the 14 day period rather than the three months to apply for a response. In the absence of any substantive response to any of the correspondence, and indeed no response at all after the request for a further form of authority, in my judgment the defendant cannot complain that the claimant commenced Part 8 proceedings. I note, in passing, the comparable provision in the practice direction regarding personal injury claims which refers to the claimant’s entitlement to commence proceedings when the defendant’s time for responding has expired without any response having been given.
THERE WAS NO DUTY ON THE CLAIMANT TO DO MORE
“28. Mr Mason submitted that the claimant should have made further efforts to communicate with the defendant before commencing proceedings. In particular, a phone call could have been made. I do not accept that it is for the claimant to chivvy an unresponsive defendant in this way. Furthermore, the episode of the 14 emails between Mr Green and Mr Plemper I am about to describe (in paragraph 30) regarding the nature of the objection to an order for delivery of the bill and a request for an extension of time for service of written submissions or evidence, does not fill me with any confidence that a telephone call, or any other form of communication, would have resolved matters in any event.”
THE BILL EVENTUALLY APPEARED – AND THE DEFENDANT IS PAYING FOR IT
“30. The communications on 26 November revolved around what objection the defendant had to an order for delivery of a bill and the procedural question of the ability of the defendant to rely on written submissions or evidence having not done so when filing and serving the acknowledgement of service. Mr Mason portrayed these communications as being a simple request for an extension of time which the claimant had unreasonably refused. There was eventually an agreement for an extension until 10 December 2024 and on that date the defendant provided a final statute bill. Mr Mason described this as narrowing the issues which was a phrase used by Mr Plemper when seeking the extension. It seemed to me to be a slightly inapposite description where the purpose of the proceedings was simply to obtain a final statute bill. That had been provided and there was no suggestion of any remaining issues to be narrowed.
31. Mr Simpson described this day of communications as requiring the claimant to explain to the defendant the latter’s choice of options regarding witness evidence and from which the defendant eventually decided to choose. At the same time, the defendant refused to provide any clarification of the basis of the objection to the order sought.
32. Whilst, as I indicated during submissions, I did not place any weight on the question of whether an extension was actually required for written submissions as opposed to written evidence, I do take the view that the communications show the defendant in the worst light. Having not explained why a final statute bill was not forthcoming prior to proceedings being commenced, the defendant filed an acknowledgement of service objecting to an order for a final statute bill but then ignored requests to explain the basis of that objection. Vague comments regarding the narrowing of issues in consideration of offers appeared to be little more than an attempt to secure sufficient time to produce a final statute bill. If that is correct, it is not obvious why that could not be communicated in open correspondence. But if some other consideration was taking place during that period, there was still no reason why the defendant’s position could not have been set out.
33. Consequently I do not consider the claimant’s conduct during the proceedings to be capable of justifiable criticism either. As I have not found in the defendant’s favour in respect of the claimant’s conduct either before or during the proceedings, the defendant’s final submission – that these proceedings are purely for the pursuit of costs – is an unpromising one.
34. Mr Mason relied upon his criticisms of the pre and post commencement communications to found his argument about the proceedings being for the pursuit of costs. He also referred to the claimant’s failure to pick up the phone and the past record of the defendant in producing final statute bills without the need for proceedings. To these matters already addressed, Mr Mason added communications between the parties following delivery of the bill regarding the bringing of a claim for the assessment of it under s70 Solicitors Act 1974. The time limit for a decision about this, which had been imposed by Mr Green upon himself / the claimant, had expired and there was no sign of any proceedings. In Mr Mason’s submission, the only conclusion to draw from this was that the s68 proceedings had been brought for the purpose of generating fees, regardless of any intention or decision to pursue an assessment of the bill once produced.
35. Much of the force of Mr Mason’s argument has inevitably been removed by my conclusions on the ground he covered in the first two strands of his argument. I do not accept, in any event, that the presence or absence of any s70 proceedings has any bearing on the bringing of these proceedings. The (former) client cannot decide about a possible assessment until such time as they have received a final statute bill and it must be the case that some such claimants decide not to bring subsequent proceedings having seen the bill. To require further proceedings to be brought would be, to my mind, an unjust form of validation of the initial proceedings and I reject that submission.