HD v North Devon: Retainers, Strike-Out and CPR 44.11 [2026]
Solicitor & Client — 2026-07-03
In HD v North Devon Healthcare Trust [2026] EWHC 2009 (SCCO), the court struck out six detailed assessment claims after the solicitor abandoned the clients and could no longer enforce the retainers. The judgment also orders repayment of £92,000 received on account and imposes personal indemnity costs under CPR 44.11.
Overview
Date: 3 July 2026
Judge: Costs Judge Joseph
Court: High Court of Justice, Senior Courts Costs Office
Citation: [2026] EWHC 2009 (SCCO)
Nature of Proceedings: Application concerning six linked detailed assessments, enforceability of retainers, strike-out, repayment of costs paid on account and personal costs liability under CPR 44.11
Key Issues:
- Whether the solicitor's abandonment of the detailed assessments terminated six retainers without good reason and made them unenforceable by him
- Whether the indemnity principle required the bills to be assessed at nil or the detailed assessments to be struck out
- Whether prolonged inactivity amounted to an abuse of process
- Whether £92,000 paid on account had to be repaid
- Whether the solicitor should personally pay the defendants' costs under CPR 44.11 and, if so, on what basis
---
The Facts
HD and Others v North Devon Healthcare Trust and Others, decided in the Senior Courts Costs Office in 2026 and reported as [2026] EWHC 2009 (SCCO), concerns the collapse of six linked detailed assessments after the claimants' former solicitor abandoned both his clients and their costs proceedings. The judgment addresses the consequences for the retainers, the indemnity principle, strike-out, payments on account, delay and a legal representative's personal liability under CPR 44.11.
The six claims arose from alleged failings in the consent process for synthetic mesh treatment of female pelvic conditions. The claimants formed part of a much larger cohort represented by Darren Hanison, a sole practitioner trading as Fortitude Law. NHS Resolution had been notified of 305 claims, approximately 100 letters of claim had been received and 58 claims had been compromised on terms providing for damages and reasonable legal costs.
The six claimants received their damages. Detailed assessment proceedings were then commenced, supported by signed and certified bills of costs. Costs Judge James linked the assessments in July 2022 because the bills and the anticipated disputes contained substantial common features. A five-day hearing was arranged to determine seven preliminary issues.
That hearing could not proceed on 28 and 29 November 2022. The papers required by paragraph 13.11 of Practice Direction 47 had not been lodged. A laptop supplied at the end of the first day contained files for only three of the six cases. Costs Judge James adjourned the matter and ordered the claimants to pay the defendants' costs of the abortive hearing on the standard basis.
The preliminary issues were considered over further hearings in March and April 2023. On 18 May 2023, the Solicitors Regulation Authority intervened into Mr Hanison's practice. Fortitude Law ceased trading. Mr Hanison was later struck off after disciplinary proceedings. He was not formally removed from the court record in the six linked claims until 10 June 2025.
Nothing of substance happened in the detailed assessments after March 2023. The claimants did not participate actively following the intervention and no replacement solicitor came onto the record. In December 2025, the NHS defendants applied for relief which included declarations about the retainers, strike-out of the detailed assessments, repayment by Mr Hanison of £92,000 paid on account and personal costs orders against him.
Mr Hanison, the claimants, the SRA and its intervention agent were served. None appeared at the substantive hearing. The court later joined Mr Hanison formally and gave him a further opportunity to respond. He did not do so.
---
Key Holdings
1. The solicitor terminated the retainers without good reason
The first issue was not whether the retainers had always been invalid. It was whether Mr Hanison's subsequent conduct prevented him from enforcing them.
Costs Judge Joseph found that Mr Hanison had committed a repudiatory breach. A solicitor retained to conduct proceedings must act in the matter. Mr Hanison had stopped acting for a prolonged period, had offered no credible explanation and could no longer complete the work. The claimants accepted that breach by no longer instructing him, with some obtaining independent advice. At [27], the judge described the practical reality in direct terms:
> “Mr Hanison has abandoned the claimants ... and their costs proceedings.”
The CFA disclosed by HD expressly covered negotiations about the recoverable costs and, if necessary, a court assessment of them. Those steps mattered because the amount recovered from the defendants would determine any shortfall for which the client might be liable. The assessment process was therefore part of the work required to complete the retainer, not a separate optional exercise.
Applying Re Underwood & Piper v Lewis [1894] 2 QB 306, the court treated the retainer as an entire contract. Mr Hanison had not completed the obligation to obtain agreement or assessment of the recoverable costs, and there was no prospect that he would do so. The retainer with HD was consequently unenforceable by him against her. The court inferred that the other five retainers were on the same or materially similar terms and reached the same conclusion for each claimant at [35] to [38].
The distinction is important. The judgment does not hold that every CFA becomes unenforceable whenever a solicitor ceases to act. The result followed from the terms of these retainers, the obligation to carry the costs work through to completion, termination by the solicitor without good reason and the complete absence of evidence justifying his conduct.
2. The indemnity principle defeated the six claims for costs
Once the retainers were unenforceable by the solicitor, the claimants had no liability to him for the costs incurred under them. The indemnity principle therefore prevented the claimants from recovering those costs from the NHS defendants.
At [39], the judge stated the consequence:
> “there is nothing which is capable of being recovered from the defendants.”
The detailed assessments had to be struck out. The alternative route would have produced the same financial result because each bill would have been assessed at nil.
This aspect of the decision underlines the connection between the receiving party's liability to its own legal representative and inter partes recovery. A costs order against an opponent does not create a free-standing entitlement to recover sums which the receiving party does not owe.
3. Prolonged inactivity was a serious abuse of process
The judge also considered the defendants' independent strike-out case under CPR 3.4(2)(b). The analysis followed Asturion Fondation v Alibrahim [2020] EWCA Civ 32. The court first asks whether the conduct amounts to an abuse and then decides whether strike-out is a proportionate response.
The relevant circumstances were stark. The costs orders dated from 2021 and 2022. More than three years had passed since the final preliminary-issues hearing. No explanation had been offered for the inactivity. The claimants and their former solicitor had been given the opportunity to participate in the application but had not done so. There was no realistic prospect of the assessments being pursued.
The defendants also faced continuing prejudice. They had made payments on account in six cases but could not know when the assessments would conclude or what their ultimate liability might be. The court held at [48] to [50] that the proceedings had deliberately been allowed to become dormant and that the unexplained delay seriously offended the integrity of the court's process.
An unless order giving the six claimants another 14 days to request substantive assessment was rejected. Their non-participation indicated that this was not a realistic route. Immediate strike-out was the only proportionate way to bring the proceedings to an end.
4. The £92,000 paid on account had to be repaid
The payments on account had been made on the footing that the claimants had enforceable retainers and recoverable costs. Following strike-out and the finding that the retainers were unenforceable by Mr Hanison, the basis for his retention of the money had disappeared.
At [54] to [56], the court held that allowing him to retain the payments would, in practical terms, breach the indemnity principle. Orders were therefore made requiring Mr Hanison to repay all payments on account made in the six linked claims, totalling £92,000.
The defendants sought repayment from Mr Hanison rather than from the individual claimants. That is significant in a case where the original clients had already been left without representation and had not caused the failures which brought the detailed assessments to an end.
5. The wider cohort received a 28-day CPR 47.8 unless order
The defendants also sought relief against claimants in the wider mesh cohort who had not begun detailed assessment proceedings. Their position differed from that of the six linked claimants because they had not participated in the failed assessments.
The court therefore used the specific mechanism in CPR 47.8. Those claimants were given 28 days to commence detailed assessment proceedings, failing which all costs to which they would otherwise be entitled would be disallowed.
This was a measured distinction. The six existing assessments were struck out immediately because of their history and the absence of any realistic prospect of continuation. The remaining claimants were allowed one final opportunity to commence the statutory process before the sanction took effect.
6. CPR 44.11 justified personal costs orders against the solicitor
CPR 44.11 permits the court to make an order where a party or legal representative fails to comply with a rule, practice direction or court order in connection with an assessment, or acts unreasonably or improperly before or during the assessment proceedings. Available sanctions include disallowing costs and ordering the person at fault to pay costs caused to another party.
The judge applied Gempride Ltd v Bamrah [2018] EWCA Civ 1367. Mistake or negligence alone is insufficient. Unreasonable conduct must permit no reasonable explanation and, where the target is a legal representative, involve a breach of duty to the court. Any sanction must remain proportionate.
Both limbs of CPR 44.11 were engaged. Mr Hanison failed to lodge the papers required for the November 2022 hearing and supplied an incomplete laptop. That breached his responsibilities as the solicitor on the record and caused the hearing to be abandoned.
The court also examined the bills themselves. Costs Judge James had allowed 15 hours of 63.3 hours claimed for one letter of claim, 10 hours of 66.1 hours claimed for a letter of response, and 7.9 hours of 31.3 hours claimed for a schedule of loss. Costs Judge Joseph considered those reductions highly unusual for claims of this type. In the absence of any explanation, signing bills containing very high and unsustainable claims was itself unreasonable conduct.
Mr Hanison remained responsible for the proceedings until removed from the record in June 2025. His failure to progress the assessments and his abandonment of them compounded the original defaults. The court ordered him personally to pay both the costs of the abortive November 2022 hearing and the defendants' costs of the detailed assessment proceedings as a whole.
7. The solicitor's liability was on the indemnity basis
The court then considered the basis of assessment under CPR 44.3. Costs Judge Joseph noted that indemnity costs remove the proportionality requirement and place the burden on the paying party to show that costs were unreasonably incurred or unreasonable in amount.
The governing question was whether the conduct or circumstances took the case out of the norm. The judge considered Excelsior Commercial and Industrial Holdings Ltd v Salisbury Hannah Aspden and Johnson [2002] EWCA Civ 879, Three Rivers District Council v Bank of England [2006] EWHC 816 (Comm), Balmoral Group Ltd v Borealis (UK) Ltd [2006] EWHC 2531 (Comm) and the recent decision in Breeze v Chief Constable of Norfolk Constabulary [2026] EWHC 1937 (KB).
The threshold was met. The first hearing had been wasted because the required documents were not lodged. The detailed assessments then became a fruitless and expensive exercise because the solicitor abandoned them. His conduct was well outside the norm and breached his duties as both solicitor and officer of the court.
Mr Hanison was therefore ordered to pay on the indemnity basis the costs of the abortive hearing, the detailed assessment proceedings and the defendants' successful December 2025 application.
The court recorded that the NHS defendants had given undertakings not to pursue the six individual claimants personally for their costs of the detailed assessments. The judge made clear that he could not compel those undertakings, but welcomed the protection they afforded the former clients.
---
Practical Implications
For Costs Lawyers
1. Read the retainer through to the end of the costs process. Where a CFA or retainer includes negotiation and assessment of inter partes costs, the solicitor's obligation may continue until recovery has been agreed or assessed. Ending the relationship without good reason before that point can affect enforceability.
2. Test the indemnity principle before pursuing assessment. If the receiving party is no longer liable to its solicitor, the inter partes claim may fail regardless of the underlying costs order. Retainer enforceability is therefore a threshold issue, not merely a solicitor and client question.
3. Treat certification of the bill as a serious professional act. A signed bill containing claims which are exceptionally high and unsupported may contribute to a finding of unreasonable conduct under CPR 44.11. The certifying practitioner should be able to explain the time claimed and the basis on which it was included.
4. Escalate dormant assessments before they become irretrievable. Long periods of inactivity can support an inference of deliberate warehousing. A transfer of representation, SRA intervention or firm closure requires an immediate file audit, clear responsibility and an application for directions where necessary.
5. Reconcile payments on account against the continuing entitlement. A payment made under CPR 44.2(8) is not insulated from later developments. If the retainer becomes unenforceable or the assessment is struck out, repayment may follow.
6. Use CPR 47.8 for late commencement. Where assessment has not begun, the paying party can seek an order requiring commencement by a specified date. The rule provides a focused sanction without treating an uncommenced assessment as if it had the procedural history of a dormant issued case.
For Litigation Practitioners
1. Preserve evidence of the retainer and its scope. The precise wording may decide whether completion of the inter partes costs process forms part of an entire contract. Privilege belongs to the client, and any decision to waive it should follow independent advice.
2. Do not assume removal from the record happens automatically. Under CPR 42.2(5), a solicitor remains treated as acting until the relevant procedural step occurs. Firm closure, regulatory intervention or termination of instructions must be followed by formal action on the court record.
3. Separate the available remedies. Retainer unenforceability, the indemnity principle, abuse of process, CPR 44.11 and CPR 47.8 perform different functions. An application should identify which route applies to each claimant and each stage of the costs process.
4. Join and serve the legal representative properly. A personal order under CPR 44.11 requires procedural fairness. The representative must receive the application and supporting evidence and have a reasonable opportunity to respond.
5. Protect innocent clients where the solicitor caused the problem. The undertakings given by the NHS defendants prevented further costs pursuit against the six claimants. Similar protection should be considered where clients have lost their costs through conduct which was not their own.
---
Conclusion
HD v North Devon Healthcare Trust is a significant SCCO decision on what happens when a solicitor abandons detailed assessment proceedings which the retainer required him to complete. The court held that the retainers were unenforceable by the solicitor, the indemnity principle defeated the inter partes claims and the six assessments had to be struck out. The £92,000 paid on account also had to be repaid.
The judgment is equally important for its use of CPR 44.11. Failure to lodge the hearing papers, certification of bills containing very high and unsustainable claims, and years of unexplained inactivity together justified personal indemnity costs orders against the solicitor. The court distinguished those failed proceedings from claims in the wider cohort, where a 28-day CPR 47.8 unless order gave each receiving party a final opportunity to commence assessment.
For costs practitioners, the central lesson is that retainer enforceability, client liability, procedural discipline and accurate bill certification are connected. The analysis by Mackenzie Costs is that a failure in any one of those areas can move beyond item-by-item reductions and place the entire recovery, payments already received and the practitioner's own costs position at risk.
---
Citation: HD & Ors v North Devon Healthcare Trust & Ors [2026] EWHC 2009 (SCCO)
Full judgment available at: The National Archives
Related Specialist Support
Related Cases
View all case law updates | Our services | Contact us