Solicitor Costs
A solicitor may enter into a written agreement in respect of contentious business, providing for their remuneration by a gross sum, salary, or other methods, whether at a higher or lower level than they would have otherwise been entitled to. However, a contentious business agreement may not validly purchase any interest in litigation, and stipulated payments are only applicable in the event of success.
Subject to certain conditions, a solicitor in relation to a contentious business agreement may not be referred to taxation. Such an agreement does not affect rights or remedies concerning costs payable by the client to any person other than the solicitor, and third parties may require taxation. A provision in a contentious business agreement that a solicitor shall be relieved of liability for negligence is void.
No application shall be brought for the enforcement of any contentious business agreement where a party may have to apply to enforce and satisfy the agreement and determine every question as to validity or effect. The court may determine whether the agreement is fair and reasonable, and if so, it may enforce it. If it is of the opinion that the agreement is unfair or unreasonable, it may set it aside and recover costs by taxation.
There is a provision whereby sums paid under a contentious business agreement may be reopened within 12 months at the application of the client or such further period as may be allowed in special circumstances.
The non-contentious cost committee consists of two judges of the High Court or Court of Appeal, presidents of the Land Tribunal, and two solicitors. The committee prescribes regulated remuneration of solicitors in respect of business under the Land Registration Act. The registrar of titles is a member of the committee only in respect of land registry matters.
The committee may make orders prescribing and regulating remuneration of solicitors in respect of non-contentious business. The committee may prepare a draft order to be sent to the council and may consider observations submitted to them by the council.
An order made in respect of the mode of remuneration may prescribe scales of remuneration, commission, or percentages, varying or not, in different classes of business, by gross sum or fixed sum. It may charge with reference to
- the party for whom the solicitor is concerned in the business, whether a vendor, purchaser, mortgagee, etc.,
- the place where the business is transacted,
- the amount of capital money or rent to which it relates,
- the skill, labour, and specialized knowledge and responsibility on the part of the solicitor,
- the complexity, importance, difficulty, rarity, or urgency,
- the number and importance of documents,
- time, and expense.
The order may authorize and regulate the taking of security by the client for the payment of fees.
A solicitor may enter into a non-contentious business agreement dealing with the amount and manner of payment for past or future services in relation to non-contentious business. Remuneration may be by way of a gross sum, commission, percentage, salary, or otherwise, at a rate or subject to provisions of regulations at a rate different from what would otherwise be remunerated.
The agreement must be limited to the conduct and completion of non-contentious business in respect of which it is made and not extend to any other business.
If an application is made to the High Court stating that the agreement is not fair and reasonable, the court may order it to be varied or not enforced.
Provisions whereby the purchaser is to be liable for the cost of the vendor’s solicitor are void. A lessor may require that a lease of property be prepared by their solicitor but may not require the grantee to pay their solicitor’s costs.
A requirement under the sale of land that the assurance or registration of title be prepared by a solicitor appointed on behalf of the vendor is void.
The High Court may order a solicitor to deliver a bill of costs, including the delivery of documents in its possession. The County Court has the same jurisdiction. A solicitor’s bill shall be insufficient in form if it contains a reasonable statement describing the services for a lump sum charged, together with a detailed statement of reimbursements. In any action before taxation of the bill, further details of the services rendered may be ordered by the court or taxing master.
No action is to be brought for the recovery of costs due to a solicitor until a bill of costs has been delivered, subject to exceptions. The bill of costs must be signed by the solicitor or partners and be delivered either personally or by post.
Where the retainer of a solicitor is disputed, the solicitor or client may apply to the High Court to have the dispute determined, and the court may order the bill to be taxed. If the retainer is not disputed, an order may be obtained from the taxing master by the client for the delivery of the solicitor’s bill. Taxation of a bill already delivered by the solicitor may proceed from the time and month after its delivery.
The application must be made within three months, in the absence of exceptional circumstances. An application for taxation may not be made where a judgment has been obtained for recovery or where the bill is paid, except in exceptional circumstances, in which it may be extended to six months. An order for taxation may relate to part of a bill or all of it.
Where a client obtains an order for the delivery and taxation of a solicitor’s bill, a copy of the bill must be delivered within two months or within such extended time as a taxing master directs. The cost of taxation shall, unless otherwise directed by the High Court, be at the discretion of the taxing master. The amount certified by the taxing master to be due on such taxation shall be paid forthwith by the party liable to pay the same.
There is an appeal from the determination of the taxing master to the High Court, which may be against allowances or disallowances. Only if, after due notice, any party fails to note a reason or explanation to attend or be represented at taxation, may the taxation proceed in their absence.