Hourly-Rate Litigation Retainers Are Not Contentious Business Agreements Unless the Remuneration Is Sufficiently Certain

Case: Broadfield Law UK LLP v Barnes
Citation: [2026] EWCA Civ 698 (Court of Appeal (Civil Division))
Date: 3 June 2026
Lower courts: County Court at Hertford (District Judge sitting: Upper Tribunal Judge Robin Somerville); first appeal before HH Judge Davies
Judges: Lewison LJ, Andrews LJ (lead), Warby LJ (with Senior Costs Judge Rowley as assessor)

1. Introduction

The respondent firm (a solicitor’s practice) sued the appellant former client for unpaid fees arising from divorce litigation. The client’s principal procedural defence was that the written retainer was a Contentious Business Agreement under s.59 of the Solicitors Act 1974, with the consequence that enforcement should proceed via the statutory CBA route (s.61) and (as the parties agreed) the dispute would be transferred to the Senior Courts Costs Office for determination of the amount payable.

The central issue on the second appeal was a point of principle: whether Chamberlain v Boodle & King [1982] 1 WLR 1443—which treated certainty as essential to a CBA—remains good law after the 1990 amendments expressly recognising remuneration “by reference to an hourly rate”.

2. Summary of the judgment

The Court of Appeal dismissed the client’s appeal. It held that the 1990 amendments did not alter the meaning of the core statutory language—an “agreement … as to remuneration”. Certainty remains inherent in that concept. On the facts, the retainer was “simply an indication of the rate of charging” and too uncertain to qualify as a CBA, because it permitted unspecified increases, contemplated multiple fee earners at differing rates (including ranges for unnamed staff), and left open who would do what work and how “cost-effectiveness” would be judged.

3. The statutory framework: two costs regimes

3.1 The “ordinary” bill/assessment regime (Solicitors Act 1974, ss.69–70)

• Solicitors must deliver a compliant statutory bill (s.69(2)).
• Proceedings to recover sums due normally cannot begin until one month after delivery (s.69(1)).
• The client has time-limited rights to seek assessment (s.70), with a “special circumstances” gateway after 12 months, plus a limited continuing common-law jurisdiction (noted with reference to Turner v Palomo [1999] 1 WLR 37).

3.2 The CBA regime (ss.59–61)

• A CBA is an “agreement in writing … as to remuneration” for contentious business (s.59).
• Generally, costs under a CBA are not subject to assessment (s.60(1)), and enforcement requires court scrutiny of validity/effect (s.61).
• The client can challenge a CBA as “unfair or unreasonable” (s.61(1)); if upheld as fair and reasonable, the bargain generally fixes the amount payable.

3.3 The hybrid: an “hourly rate CBA”

The 1990 amendments inserted “by reference to an hourly rate” into s.59 and created a partial return to the ordinary regime: an hourly-rate CBA remains subject to s.69 and (limited) assessment under s.61(4B), confined to (i) the number of hours worked and (ii) whether those hours were excessive. Critically, unless the CBA itself is challenged as unfair/unreasonable, the hourly rate is not re-opened on assessment.

4. Facts and procedural history (condensed)

• The client instructed the firm for divorce litigation under a written client care letter incorporating standard and litigation terms.
• The letter listed hourly rates for certain named fee earners (identified in the judgment by role and initials), stated other departmental rates in a range, and indicated rates could be reviewed/increased (overheads, seniority, qualifications), with estimates described as non-fixed.
• Four statutory bills were delivered (totalling about £139k); £39k was paid. Years later the firm sued for the balance (claim capped to use an online process).
• The client argued the retainer was a CBA so the claim should proceed via s.61 and/or be transferred for costs examination; the District Judge and HH Judge Davies held it was not a CBA (insufficient certainty), relying on Chamberlain and Wilson v The Specter Partnership & Others [2007] EWHC 133 (Ch).

5. Analysis

5.1 Precedents cited and their influence

(a) Chamberlain v Boodle & King [1982] 1 WLR 1443

Chamberlain was the foundation. Lord Denning described why an “agreement in writing … as to remuneration” must be “sufficiently specific” to tell the client “what he is letting himself in for by way of costs”, rejecting letters that merely gave broad hourly-rate bands and left multiple uncertainties.

The present court also treated Lord Denning’s distinction as enduring: a document can state how a firm generally charges, without constituting a binding “agreement as to remuneration” of the CBA kind.

(b) Wilson v The Specter Partnership & Others [2007] EWHC 133 (Ch)

Mann J’s formulation—“The essence of a CBA is certainty”—was endorsed. The client sought to downplay Wilson as overlooking the limited assessment that exists for hourly-rate CBAs, but the Court of Appeal understood Mann J’s reference to losing “taxation” as meaning loss of full assessment, which remains true.

Wilson mattered in two ways:

• It confirmed post-1990 that certainty remains required for a CBA.
• It illustrated how references to increases, complexity, urgency, or other qualitative factors can prevent an agreement from fixing remuneration “by reference to an hourly rate”.

(c) Oakwood Solicitors Ltd v Menzies [2024] UKSC 34; [2024] 1 WLR 4745

Oakwood was used for statutory context and consumer-protection rationale: the bill/assessment scheme protects clients against excessive costs. The Court of Appeal accepted that hourly-rate CBAs give clients more protection than other CBAs (because some assessment remains) but still materially less than the ordinary assessment regime—supporting continued insistence on certainty before displacing ordinary assessment rights.

(d) Clare v Joseph [1907] 2 KB 369

This authority supplied historical explanation of solicitor-client cost agreements and the suspicion/undue influence concerns that led to statutory regulation. The Court of Appeal used it to reinforce that CBA regulation is about holding parties to a bargain only where there truly is a bargain about remuneration, subject to fairness review.

(e) Turner v Palomo [1999] 1 WLR 37

Cited to note that even where statutory assessment rights expire, a common-law assessment power may still exist. This helped frame why parties might strategically characterise a retainer as a CBA (notably where s.70 time limits have passed).

5.2 Legal reasoning: why certainty survives the 1990 amendments

(a) The unchanged core language of s.59

The key interpretive move was textual and structural: the 1990 Act expanded methods of fixing remuneration (adding hourly rate expressly) but did not alter the meaning of the foundational phrase “agreement … as to remuneration”. Since Chamberlain construed that phrase, its certainty requirement persists.

(b) “Agreement as to remuneration” is inherently about an ascertainable amount

The court tied certainty to the statutory consequences: s.60(4) limits recovery to “agreed costs”. If the agreement does not identify the remuneration or a workable mechanism that identifies it, there are no “agreed costs” to enforce as a CBA.

(c) The limited assessment under s.61(4B) does not justify lower certainty

The client argued that because hourly-rate CBAs permit assessment of hours and excessiveness, certainty is less important. The court rejected that: the limited assessment cannot compensate for uncertainty in the rate or in who can charge what rate, because s.61(4B) does not allow the costs judge to substitute a different rate where the work should have been done by someone more junior; it only polices hours and excess.

(d) What would qualify as an hourly-rate CBA?

The Court of Appeal identified a “paradigm case”: a single specified hourly rate payable for all work throughout the litigation. It also contemplated a specified rate with a maximum-hours structure. The common feature is a sufficiently certain fixing mechanism: the agreed rate multiplied by the hours (recorded in a statutory bill) yields the remuneration.

Conversely, an agreement specifying a range (e.g., “between £150 and £250 per hour” by reference to complexity) lacks certainty: it leaves selection of the applicable rate to discretion rather than agreement.

(e) Multi-fee-earner firms: left open

The court noted the potential interpretive difficulty where a firm has multiple fee earners and multiple rates, and suggested the “singular includes the plural” canon might be relevant. But it declined to decide whether, and in what circumstances, a multi-rate schedule can ever satisfy s.59, beyond accepting it is at least theoretically possible if the agreement specifies with precision which person will do which work at which rate.

5.3 Application to the retainer in issue

The agreement failed the certainty test for multiple, cumulative reasons:

• Unspecified increases at unspecified times (overheads, seniority, qualifications) undermined any fixed hourly rate.
• Allocation uncertainty: it was unclear who would do what work; this left open partner-level charging for work that might ordinarily be done by junior staff—something only a full assessment could properly address.
• Rate ranges for unnamed staff and general statements about using others “when cost effective” without defining how that would be evaluated.

Echoing Chamberlain, the court characterised the documents as an indication of charging approach rather than an agreement fixing remuneration.

6. Impact and significance

6.1 For litigation retainers and “client care letters”

The decision makes it harder for ordinary multi-rate client care letters—especially those reserving broad rights to raise rates—to be treated (perhaps opportunistically, after the event) as CBAs. Firms that wish the CBA regime to apply must draft with far greater precision as to the agreed remuneration mechanism.

6.2 For clients seeking to re-open costs after s.70 time limits

A practical driver in this litigation was that the client’s s.70 assessment windows had expired. The Court of Appeal’s approach reduces the scope to recharacterise standard terms as CBAs to obtain the procedural advantages of s.61 (including the different “special circumstances” reopening provision in s.61(5)).

6.3 For costs adjudication under s.61(4B)

The judgment reinforces the narrowness of s.61(4B): costs judges cannot effectively correct “grade of fee earner” issues by adjusting rates; their inquiry is confined to hours and excessiveness (absent an unfair/unreasonable challenge to the CBA itself). That informs both drafting and litigation tactics.

6.4 Open questions

The Court of Appeal left open whether (and how) multi-fee-earner practices can reliably create hourly-rate CBAs without collapsing into uncertainty. Future cases may address whether a sufficiently detailed matrix of roles/tasks/rates can satisfy s.59 in real-world litigation where staffing is dynamic.

7. Complex concepts simplified

• Contentious Business Agreement (CBA): a special written agreement about a solicitor’s fees for litigation work. If valid, it can displace the client’s normal right to full costs assessment, subject to fairness controls.
• Statutory bill (s.69) and assessment (s.70): the usual consumer-protection mechanism letting clients challenge bills within defined time limits.
• Hourly-rate CBA (post-1990): a CBA that uses a stated hourly rate as the pricing mechanism; assessment still happens, but normally only of hours and whether they were excessive—not of the rate itself.
• Certainty: the agreement must actually fix remuneration or provide a clear mechanism to determine it, so the client can understand the financial commitment and the solicitor can claim “agreed costs”.

8. Conclusion

Broadfield Law UK LLP v Barnes [2026] EWCA Civ 698 reaffirms that Chamberlain v Boodle & King [1982] 1 WLR 1443 remains authoritative after the 1990 amendments: an hourly-rate retainer is not a CBA unless it is sufficiently certain to constitute an agreement “as to remuneration”. Standard litigation retainers that list multiple rates, contemplate discretionary staffing, and reserve rights to unspecified increases are likely to be treated as ordinary retainers, leaving disputes about the level of costs to the ordinary bill/assessment framework (subject to limitation rules), rather than the CBA enforcement regime.