Lisa Jones v Richard Slade & Co Ltd (14/12/21, SCCO) : Extent of the SCCO's jurisdiction on setting aside an agreement as to amount of a solicitor's fees
We do not propose to comment in detail as the substantial claim is ongoing, but this judgment dismissing the solicitors' application to strike out part of the Points of Claim, reinforces what we consider to be important points regarding the extent of the jurisdiction of a Costs Judge sitting in the Senior Courts Costs Office.
16. Since the advent of the so-called "costs wars" at the beginning of this century, allegations regarding retainer issues which potentially knock out the entire claim have regularly been dealt with in costs proceedings, both between the parties and between solicitor and client. As such, I would suggest that matters which go to the heart of retainer are no longer a reliable indication of the sort of case which ought to be dealt with in the High Court. Similarly, some of the issues identified by Teare J in Stephenson Harwood are commonly dealt with in costs proceedings. Matters such as a breach of fiduciary duty are regularly being dealt with by costs judges and indeed district judges in district registries before sometimes being appealed to High Court Judges and above.
17. This is perhaps not surprising given that the relationship between the solicitor and client is fundamentally a contractual one and the "retainer" is based on a contract, albeit with various duties, fiduciary, statutory and otherwise being implied within its terms. In the circumstances, it does not seem to me to be obvious that an argument that a contract should be set aside should of itself ring alarm bells suggesting that proceedings ought to be dealt with in a Chancery Court via a different procedure. This is all the more so given the express requirement of "costs officers" to examine non-contentions and contentious business agreements to determine whether they are fair and reasonable. Depending upon that determination, the (Non-)CBA would either be upheld or set aside under the Solicitors Act
20. Mr Williams submitted that the purpose of section 70 Solicitors Act proceedings was to have an assessment of the defendant's bill. He described the remedy claimed of rescission of the contract of compromise were a million miles away from an assessment. If the claimant were seeking equitable remedies as a result of setting aside the contract, then again I think Mr Williams would have been on firmer ground with this argument. But the only purpose of seeking to set aside the compromise is so that the claimant can then have the defendant's bill of costs assessed under section 70. It is no more than an obstacle on the way to that assessment. In such circumstances I do not see that the remedy sought in relation to the contract is one which requires a specialist Chancery Court to determine it.
23. Notwithstanding Mr Williams' customary eloquence on his client's behalf, I do not consider that the nature of the claim and the remedies sought are ones outside this court's jurisdiction