Summary of Judgment

Factual and Procedural Background

In 2018 the Appellant engaged Company A to act in her divorce. The written retainer comprised a client care letter (14 August 2018) incorporating Company A's standard and additional terms. The letter specified multiple hourly rates for different fee-earners, provided illustrative cost estimates, and stated rates might be increased or reviewed. Company A delivered four statutory bills between October 2018 and January 2019 totalling £139,198.40. The Appellant paid £39,000; other bills remained unpaid. In January 2024 Company A sued for the balance, limiting its claim to £75,000 to use the online money claims process.

The Appellant pleaded that the retainer was a Contentious Business Agreement (CBA) within s.59 of the Solicitors Act 1974 and contended Company A was required to seek enforcement under s.61. She applied to strike out (or stay and transfer to the SCCO) on that basis. The District Judge held the retainer was not a CBA as it was insufficiently certain; HH Judge Davies dismissed an appeal. Permission to bring a second appeal to the Court of Appeal was granted and the appeal was heard with Senior Costs Judge Rowley sitting as assessor. The Court of Appeal dismissed the appeal.

Legal Issues Presented

1. Whether a written agreement between a solicitor and client that sets fees by reference to hourly rates is a "contentious business agreement" (CBA) under s.59 of the Solicitors Act 1974.
2. Whether the decision in Chamberlain v Boodle & King [1982] 1 WLR 1443 — requiring sufficient certainty in a written agreement as to remuneration — remains good law after the amendments to ss.59–61 by s.98 of the Courts and Legal Services Act 1990.

Arguments of the Parties

Appellant's Arguments

• The amendments to ss.59–61 allow an agreement that provides for remuneration by reference to an hourly rate to be a CBA; therefore a retainer specifying hourly rates qualifies even if it does not enable the client to calculate an exact total cost.
• Because an hourly-rate CBA requires delivery of a statutory bill and permits the court (under s.61(4B)) to assess hours worked and whether they were excessive, the rationale for the certainty requirement identified in Chamberlain no longer applies to hourly-rate CBAs.
• Any written retainer specifying hourly rates for fee-earners who may work on the case should be treated as an hourly-rate CBA, even if multiple fee-earners have different rates and some uncertainty as to who will do which tasks exists.

Respondent's Arguments

• The requirement of certainty identified in Chamberlain is inherent in the statutory phrase "an agreement in writing with his client as to his remuneration" and was not removed by the 1990 amendments.
• An hourly-rate CBA must still identify "an hourly rate" (or otherwise provide a fixing mechanism, e.g. a specified rate applied to a specified number of hours) so that the client knows what they have agreed to pay.
• The retainer in this case was insufficiently certain (ranges, unspecified increases, multiple unnamed fee-earners and cost-effectiveness provisions) and therefore did not constitute a CBA; the claim may proceed under ordinary enforcement routes.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory framework: ss.69–70 (ordinary billing and assessment), s.59 (definition of CBA), s.60 (effects of a CBA), and s.61 (court's supervisory role), including the 1990 Act amendments expressly permitting remuneration "by reference to an hourly rate" and restricting assessment under hourly-rate CBAs to hours worked and excessiveness (s.61(4B)).

The court accepted that the 1990 amendments allow an agreement fixing remuneration by reference to an hourly rate to be a CBA, but held those amendments did not negate the inherent requirement of certainty in "an agreement in writing as to his remuneration" identified in Chamberlain. The historical statutory context (including s.4 of the 1870 Act and subsequent consolidating Acts) supports treating "an agreement as to remuneration" as requiring that the amount payable or the mechanism for fixing it be sufficiently certain.

Applying that test, the court examined the retainer's terms: (a) multiple specified hourly rates subject to unspecified increases; (b) ranges for unnamed fee-earners; (c) no fixed allocation of work between named fee-earners; and (d) cost-estimate language and general "cost-effectiveness" provisions. The court concluded these features left the client unable to know what they were agreeing to pay and thus the retainer lacked the required certainty. The court rejected the Appellant's submission that the limited right of assessment under s.61(4B) eliminates the need for certainty, observing that the costs judge cannot reduce the agreed hourly rate by discounting hours and that the limited assessment cannot cure uncertainty as to the applicable rate.

Holding and Implications

HOLDING: The appeal is dismissed. The Court of Appeal held that the 1990 amendments did not remove the requirement of certainty established in Chamberlain; the retainer in this case was insufficiently certain and therefore was not a CBA.

Implications:

• Direct effect on the parties: the retainer is not a CBA, so the procedural protections and enforcement pathway under s.61 (including transfer to the SCCO for examination under a CBA) do not apply to this retainer as drafted.
• Legal principle: the judgment confirms that an hourly-rate mechanism may constitute a CBA only where the agreement provides sufficient certainty (for example, a single specified hourly rate applied as the fixing mechanism or an agreed rate for a specified number of hours); ranges, multiple unspecified increases, and unspecified allocation of work will generally fail the certainty test.
• No broader displacement of precedent: the court treated Chamberlain and Wilson as remaining authoritative on the certainty requirement and applied them rather than creating a contrary precedent.