Challenging solicitors’ bills: lessons from Biggar v Howard Kennedy

Clients are increasingly challenging solicitors’ costs and seeking assessment as in the recent case of Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO). It is not only clients (who have a direct contractual relationship with law firms) who can challenge their legal costs but beneficiaries of estates and trusts can do the same as was the case in Kenig v Thomson Snell & Passmore LLP [2024] EWCA Civ 15 (18 January 2024). Both the SRA and Legal Ombudsman have reported an increase in complaints received generally and so solicitors need to be well prepared when faced with such complaints, whether justified or not. 

This article examines the recent case of Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO) which determined the claimant’s application under section 70 of the Solicitors Act 1974 for the assessment of a series of 19 bills, totalling £195,954.60, delivered to the claimant by the defendant.

The first three invoices were paid (from 29 June 2020 to 26 August 2020) and the remaining invoices remained either part paid or unpaid. The last invoice was rendered on 28 July 2023. The claimant's section 70 application was made, under CPR Part 8, on 9 January 2025.

The key issues before the court were whether the defendant was right to say that the first three bills in the series had been paid, and whether such “special circumstances” exist in order to challenge the remaining invoices. 

The court took into consideration the terms of the defendant’s retainer as well as the information provided to the claimant on delivery of the invoice. The claimant’s position was that the only estimate he received was in the retainer letter dated 12 June 2020 and was for £10,000-£15,000 plus VAT. 

In both the retainer and on delivery of the invoice, the following wording was included: “Unless otherwise stated, each of our bills has the status of a statute bill (but is not necessarily a final bill in the matter) which means that in the event of non-payment we are entitled to issue proceedings for recovery through the courts after the expiration of one month from the date of delivery of the bill. A statute bill also gives you certain rights to have the bill assessed by the court under the Solicitors Act 1974 if you consider that you have been incorrectly charged. Your right to have a bill assessed is subject to time limits and lost if you do not take action promptly. Your right to have a bill assessed is separate from your right to complain..."

Decision in relation to invoices that had been paid

The claimant made payments to the defendant to settle invoices. The first invoice was paid in full and the second and third paid over a series of small payments over a prolonged period. The claimant attempted to argue that he was paying “generally” without knowing which invoices were to be discharged; the judge described this point as “irrelevant”. The test is whether he acted in a way that constitutes an agreement to pay, and he did.

The judge referenced Menzies v Oakwood in which Lord Hamblen summarised the principles in this way: “In summary, the authorities show a long established understanding as to what payment by deduction or retention requires in this context both generally and with specific reference to section 70 and its statutory predecessors. The need for a settlement of account has been consistently stated in cases from In re Bignold in 1845 to Harrison v Tew in 1987.”

"This requires an agreement to the sum taken or to be taken by way of payment of the bill of costs. Such an agreement may in an appropriate case be inferred from the parties' conduct and in particular from the client's acceptance of the balance claimed in the delivered bill. The authorities therefore provide strong support for the Client's case of the need for an agreement as to the amount to be paid in respect of the bill of costs and that mere delivery of the bill does not suffice."

In accordance with section 70 of the Solicitors Act 1974, a bill is “paid” where there is an agreement to the sum taken in payment, which can be inferred from the client’s conduct in making payments against the outstanding balance of bills rendered, without requiring specific agreement to the allocation of each payment to a particular invoice. Accordingly, the Judge found that he had no jurisdiction over those bills that which had been paid. 

Decision in relation to unpaid invoices rendered over 12 months prior

The existence of “special circumstances” justifying an assessment of a solicitor’s bill out of time is determined by comparing the case to the ordinary run of cases to see whether there is anything out of the ordinary course and which calls for an explanation or further scrutiny (Raydens Ltd v Cole [2021] 7 WLUK 539 paragraphs 18 and 20 to which the judge referred).

The claimant asserted that “special circumstances” (section 70(3) (c) of the Solicitors Act 1974) had arisen to justify the Court making an order for assessment. The judge referred to his own authority from that judgment:

"Special circumstances do not have to be exceptional circumstances. They can be established by something out of the ordinary course, sufficient to justify a departure from the general position under section 70 of the 1974 Act (Sales LJ in Stone Rowe Brewer LLP v Just Costs Ltd [2015] EWCA Civ 1168, at paragraphs 66 and 69, and Costs Judge Rowley in Masters v Charles Fussell & Co LLP [2021] EWHC B1 (Costs) at paragraph 60)…

In many ways, a helpful test is to consider whether there is something in the fees claimed by the invoices, or in the circumstances in which they were charged, which 'call for an explanation'. If they do call for an explanation or further scrutiny, that is a strong indication that there should be an assessment. This is not the time for the explanation to be given and evaluated in detail. That is the purpose of the assessment procedure and the scrutiny it provides."

The judge found the claimant’s failure to challenge a solicitor’s bills for a prolonged period (in this case over 17 months), while continuing to instruct the solicitor and never expressing dissatisfaction with the amounts charged, meant that the threshold was not crossed to find “special circumstances”. 

The defendant provided a retainer letter with an estimate of costs for initial work which was subsequently exceeded but that fact did not, of itself, constitute a special circumstance because the estimate was expressly provisional and was quickly superseded by the client’s subsequent conduct demonstrating an understanding of the likely scale of costs for the full matter. Not only that, but the claimant had full knowledge of accruing costs because invoices were routinely delivered and instructions continued. The judge therefore did not find that the lack of update to the estimate constituted “special circumstances” and the claimant’s application was rejected.

Some interesting points of note emerge from this judgment: 

Costs information is key

The judge made clear that the defendant “did not provide the sort of regular estimates promised in the defendant's June 2020 engagement letter." Further, the defendant was providing information about future costs for the purposes of obtaining funding. Ultimately, however, the judge found that the claimant was kept informed of accruing costs because regular bills were rendered and then in arrears, rather than by estimates in advance. Alongside this sits the wording provided in both the retainer letter and on delivery of the invoices which reminded the claimant about his right to challenge the defendant's bills, and of the fact that the right was subject to time limits.

Exercising a lien

Due to the non-payment of invoices, the defendant exercised a lien over the claimant’s files. The claimant was advised at the outset that this would happen and the defendant then exercised this right. This did not suffice to justify the delay in the claimant bringing the application. 

Hourly rate increases

The claimant complained that the defendant failed to notify him about hourly rate increases which was found to be the case; however, the judge found that notification was not a “precondition of the defendant’s right to charge and the defendant reserved the right to notify the claimant of such charges after the event”. 

The judge commented: “In that respect I have noted that each of the defendant's invoices was accompanied by a breakdown identifying every fee earner for whom charges were rendered, along with that fee earner's hourly rate. It would follow that the defendant has complied at least with the letter of its obligation to notify the claimant of any increased hourly rates”.

Concluding Points 

While this case was ultimately decided in the defendant law firm’s favour and an assessment of costs was not ordered, it should not provide comfort that solicitors can overrun on estimates. Significant emphasis was placed on the wording of both the retainer letter, on the information provided when the invoices were delivered and in the conduct of the claimant in continuing to engage and instruct the defendant. Firms should remain vigilant and consider the information provided to clients (and third party beneficiaries) in their retainer letter, on delivery of invoices and also keep clients apprised of increasing costs and changes to hourly rates. 

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