Much of the confusion and complication surrounding solicitor-client assessments of Bills of Costs surround the mechanism for the procedure, the importance of Statute Bills and compliance with the Solicitors’ Act and thereafter CPR 46.9.
Once the matter reaches the Court, the assessment should take the form of any other normal assessment of costs, albeit on an indemnity rather than standard basis. And, unless the solicitor has woefully miscalculated their costs, they should effect a reasonable recovery. However, whilst the indemnity basis places a greater onus on the paying client to argue that an item, or items, are unreasonable or unnecessary, it does not give solicitors licence to charge costs in a more favourable, and profitable, manner than would be the case on an inter partes basis.
In the recent case of Breyer Group PLC V Prospect Law  (Master Rowley, SCCO, unreported) the Master noted that “unusual” items of costs would not be recoverable from a client, particularly when it related to contentious work – as in this case – and clients had not been expressly informed that such costs would not have been recoverable had the assessment been on an inter partes basis.
The Defendant solicitor had sought to charge standard units of communications at 1/6 of the claimed hourly rate (ie 10 minutes), as opposed to the usual 1/10 ratioo (6 minutes). The Master noted that this was accepted practice in, for example, transactional non-contentious work, but not in standard contentious litigation.
Further, the Defendant also sought to claim reviewing incoming correspondence at the full rate for reviewing incoming correspondence, as opposed to the usual practice of a half-rate or 1/20 of the rate per item. Again, the Master considered such costs were unusual, particularly as such costs are not recoverable at all on an inter partes assessment.
On both above points, the Master’s view was informed by the provisions in Practice Direction 46, para 6.1.
“6.1 A client and solicitor may agree whatever terms they consider appropriate about the payment of the solicitor’s charges. If however, the costs are of an unusual nature, either in amount or the type of costs incurred, those costs will be presumed to have been unreasonably incurred unless the solicitor satisfies the court that the client was informed that they were unusual and that they might not be allowed on an assessment of costs between the parties. That information must have been given to the client before the costs were incurred “ (Emphasis added)
Whilst there is a greater degree of flexibility in how a solicitor may approach billing their own client, the above case, and associated statutory provisions highlight that Practitioners must make their clients fully aware of the risks associated with Billing work in a manner that does not meet the standard requirements in CPR and the Practice Direction.