Solicitor-Client Assessments: Estimates, Payment, and Special Circumstances: Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO)
Solicitor & Client — 2026-01-29
The SCCO has dismissed a client application for a s.70 assessment. Costs Judge Leonard ruled that general payments on account constitute "payment" of bills for statutory time limits, and estimate overruns do not justify assessment if the client would have continued instructing the firm anyway.
Introduction
In Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO), Costs Judge Leonard delivered a robust judgment on the definition of "payment" under the Solicitors Act 1974 and the role of estimates in establishing "special circumstances".
The Facts
The Claimant, a former client involved in a substantial fraud prosecution, sought a detailed assessment of 19 bills delivered between 2020 and 2023, totaling approximately £196,000. He relied heavily on an initial preliminary estimate of £10,000–£15,000 given at the outset of the retainer.
The Defendant firm argued that the earlier bills had been paid more than 12 months prior (barring assessment under s.70(4)) and that no special circumstances existed to assess the remainder under s.70(3).
The Issues
- Payment: Did general payments made by the client against a running balance constitute "payment" of specific bills, triggering the 12-month time bar?
- Estimates: Did the massive disparity between the initial estimate and final costs constitute "special circumstances"?
The Decision
The application for assessment was dismissed.
1. Payment by Conduct
The Claimant argued, citing Menzies v Oakwood, that he never agreed to pay specific bills. The Judge rejected this.
He held that Menzies does not require a client to agree to the allocation of specific sums to specific invoices with "exactitude". The Claimant's conduct—making payments from time to time against the outstanding balance—constituted an agreement to pay. Therefore, the earlier bills were statute-barred.
2. Estimates and Causation
On special circumstances, the Judge found that while the firm failed to provide regular updated estimates, this did not prejudice the client.
The evidence showed the Claimant was aware costs were escalating (he was attempting to raise over £1m for funding) and explicitly chose to continue instructing the firm rather than move to cheaper representation. The Judge concluded:
"It does not follow that a client who, on receipt of better estimates, quite evidently would have made exactly the same choices can still make a credible case for limiting the solicitor's costs."
3. Hourly Rates
The Judge also noted that listing the hourly rate for each fee earner on the face of every invoice was sufficient to discharge the obligation to notify the client of rate increases.
Comment
This decision is a helpful shield for solicitors facing s.70 applications. It confirms that "payment" can be inferred from general conduct without a forensic accounting exercise, and that estimate overruns are not a "get out of jail free" card for clients who knowingly continue with expensive litigation.
Read the full judgment on BAILII
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