Turner v Coupland Cavendish: ATE Commissions and Costs Assessment [2026]

Solicitor & Client — 2026-09-21

The Court of Appeal limits ATE commission inquiries within solicitor and own client assessments, rejects the Raubenheimer ruling and explains why solicitors’ fiduciary duties remain.

Overview

Date: 21 September 2026

Court: Court of Appeal (Civil Division)

Judge: Lady Justice Andrews, with Lord Justice Phillips and Lord Justice Lewison agreeing; Costs Judge Whalan sitting as assessor

Citation: [2026] EWCA Civ 1204

Nature of Proceedings: Second appeal concerning a request for information about possible ATE insurance commissions within a solicitor and own client costs assessment.

Key Issues:

Whether CPR Part 18 can compel answers about possible secret ATE commissions within section 70 assessment proceedings.
The purpose of the cash account and the limits of certification under section 70(7) of the Solicitors Act 1974.
The status of the ATE-commission ruling in Edwards/Raubenheimer.
The distinction between a solicitor’s fiduciary obligations and the court’s jurisdiction in an assessment.

In Stephen Turner v Coupland Cavendish Limited [2026] EWCA Civ 1204, the Court of Appeal held that a solicitor and own client assessment cannot be used to investigate possible secret commissions on after the event insurance through a CPR Part 18 request. The obligation to determine the result of the cash account does not turn an assessment of the solicitor’s bill into proceedings for a general account.

The appeal succeeded because the court had no power to order answers to the request within those proceedings. That conclusion does not relieve solicitors of their fiduciary obligations. Andrews LJ expressly criticised the refusal to answer a former client’s questions and recognised the practical difficulty of obtaining information through separate proceedings where only a small sum may be at stake.

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The Facts

Mr Stephen Turner instructed Coupland Cavendish Limited, trading as Gowing Law, in August 2019 under a conditional fee agreement to pursue a personal injury claim arising from a road traffic accident. The claim settled without proceedings in around October 2020 for £3,000 in damages, together with a contribution towards costs.

The statutory bill, delivered on 11 March 2022, recorded profit costs of £7,944 including VAT and a success fee of £750 including VAT. The success fee was deducted from the damages and paid to an associated Gibraltar company, AJG Ltd, apparently under a separate damages-based agreement. A further £245 was deducted for the ATE premium. Mr Turner received the remaining £2,005 of his damages: [13]–[15], [28].

Mr Turner commenced Part 8 proceedings seeking assessment under section 70 of the Solicitors Act 1974, restricted to the profit costs and success fee. His new solicitors subsequently served an 18-question request, purportedly under CPR Part 18, asking about commissions and other financial benefits connected with the ATE policy. The request preceded delivery of the cash account: [15], [22]–[24].

Costs Judge Rowley refused to require answers. No formal application had been made and the request itself was not before him. Sweeting J allowed an appeal and ordered answers. The Court of Appeal allowed the solicitors’ second appeal: [33]–[45], [100]–[106].

Importantly, the judgment did not establish that these solicitors had received a secret commission. The court considered that any recoverable commission, if one existed, was unlikely to exceed £25: [8].

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Key Holdings

1. Assessment of the bill is not the taking of a general account

The starting point is the statutory purpose of the proceedings. Drawing on Menzies v Oakwood Solicitors Ltd [2024] UKSC 14, Andrews LJ explained that section 70 protects clients against overcharging for solicitors’ services. It determines what costs were reasonably incurred and reasonable in amount: [60]–[63].

Section 70(7) requires the costs officer to assess the bill and the costs of assessment, then certify what is due to or by the solicitor in respect of those matters. The words linking certification to the bill are critical. The court is not conducting a general inquiry into everything that solicitor and client might owe one another: [64]–[68].

The cash account supplies the financial information needed to calculate the balance after assessment. Payments already made towards the bill, and client funds available to satisfy it, must be brought into account. Otherwise a client could be required to pay twice, or a solicitor could retain an overpayment.

However, the obligation under PD 46 paragraph 6.19 to determine the result of the cash account does not authorise a merits-based investigation of every transaction recorded in it. Nor does it authorise an investigation into hypothetical receipts which a client believes might have been omitted.

The distinction is between calculating what remains payable in respect of the assessed costs and deciding a separate claim that the solicitor must account for other money.

2. An ATE commission claim cannot enter the assessment through the cash account

In Herbert v HH Law Ltd [2019] EWCA Civ 527, the Court of Appeal had established that the ATE premium was not a solicitor’s disbursement assessable as part of the bill. The premium is payable by the client to the insurer under the insurance contract and appears instead in the cash account: [3].

Turner rejects the suggested alternative route. A client cannot challenge the premium through the cash account when it cannot be challenged within the assessment itself. Equally, a possible credit for a secret commission cannot be introduced by asserting that the cash account is incomplete: [75]–[77].

The reasoning is reinforced by Lisa Jones v Richard Slade and Company Ltd [2022] EWHC 1968 (QB). An allegation of breach of fiduciary duty which need not be resolved to decide whether the billed costs were reasonable in amount or reasonably incurred cannot be introduced into the assessment. Moving the allegation to the certification stage does not cure that problem: [78].

This is a jurisdictional limitation, not merely a criticism of the evidence in Mr Turner’s case. Producing stronger evidence of an ATE commission would not, by itself, turn its recovery into an issue within the section 70 assessment.

3. The ATE-commission ruling in Edwards/Raubenheimer was wrongly decided

The court directly rejected the relevant ruling in Edwards and others v Slater and Gordon UK Ltd [2022] EWHC 1091 (QB), concerning the Raubenheimer appeal.

There, administrators of an ATE insurer had revealed payments to an affiliate of the solicitors. Ritchie J ordered answers to a Part 18 request, envisaging that a later hearing could determine the appropriate forum for any resulting dispute. His approach sought a practical response to the disproportionate cost of separate proceedings: [89]–[92].

Andrews LJ acknowledged that concern but held that it could not confer a jurisdiction which the costs judge did not possess. Information about extraneous matters could not be compelled simply to enable the court to decide later whether to determine the dispute itself or send it elsewhere.

The older authorities, Jones v James (1839) 1 Beav 307 and Cooper v Ewart (1847) 2 Ph 362, supported the distinction between accounting for funds applicable to the bill and taking a general account. At [93], Andrews LJ concluded that Raubenheimer was wrongly decided and, because Jones v James had not been considered, decided per incuriam.

The point is specific: the judgment rejects that ATE-commission ruling, not every issue decided in the wider Edwards litigation.

4. Part 18 remains available for genuine issues within the assessment

Turner does not impose the requirements for specific disclosure upon every Part 18 request. Andrews LJ agreed that the threshold condition is that the information must concern a matter in dispute in the proceedings. There must nevertheless be a genuine existing dispute, and the request must be necessary and proportionate: [69].

A request cannot be used to obtain information for separate potential claims or to circumvent disclosure requirements. Describing the cash account as disputed does not make every question about the solicitor’s financial dealings an issue which the assessment court must determine: [58]–[59], [94]–[95].

By contrast, Part 18 may properly seek information about matters which the costs judge will decide when assessing the bill. Andrews LJ gave examples concerning time spent on a task or the use of a partner instead of a more junior fee earner: [73].

The practical test is therefore to identify the issue the costs judge has power to decide, then explain how the requested information helps resolve or narrow it. A request aimed at discovering whether a separate cause of action exists fails that test.

5. Relevant payment disputes can still be resolved

It would also be wrong to read Turner as preventing all inquiries into the cash account.

At [96]–[99], the court recognised that the costs judge may need to resolve disputes about payments on account of costs, or funds received for the client which the solicitor may apply towards the bill. Examples include an omitted payment, a mathematical error, or a dispute over an agreement permitting appropriation of money towards fees.

These matters affect the balance due in respect of the assessed bill. A separate dispute about an ATE commission does not become relevant merely because a successful claim could ultimately produce money payable to the client.

The court also rejected the proposition that an unexplained query automatically requires the solicitor to prove the entire cash account. At [88], Andrews LJ stated:

> The cash account is presumed to be accurate unless there is a good reason to suppose that it is not.

A client asserting an omitted payment on account must prove it. That is not a finding that solicitors have no accounting obligations; it addresses the treatment of disputed payments within the assessment process.

6. The procedural defects independently justified refusal

The absence of a formal application and the failure to put the actual questions before the costs judge were substantive procedural failings, not details which could simply be overlooked.

PD 18 requires the application to identify the matters on which information is sought and to set out or attach the proposed order. The judge must know precisely what answers the applicant wants and why: [34], [57].

Andrews LJ held that the original refusal was an unimpeachable case management decision. Even had the request been legitimate in scope, the costs judge was entitled to refuse an order in those circumstances: [42], [100(iv)].

7. Solicitors’ fiduciary obligations remain

The solicitors’ jurisdictional success should not obscure the court’s criticism of their approach. At [5], Andrews LJ described their refusal to answer as unattractive and unwise. If no commission had been received, they could simply say so. A refusal could justify proceedings for an account and might expose them to the costs of those proceedings if their conduct was unreasonable.

At [101]–[102], the court identified proceedings for an account, or a complaint to the Legal Ombudsman, as the available routes when the solicitor refuses to answer. It recognised the difficulty of requiring clients to incur substantial expense to investigate small commissions, particularly where the evidence is held by the solicitor.

That difficulty did not permit the court to expand the assessment jurisdiction. Andrews LJ instead flagged the issue for those able to change the rules or the law.

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Practical Implications

For Costs Lawyers

1. Separate assessment issues from accounting claims. Identify whether the complaint concerns the bill, a payment applicable to it, or an independent entitlement to money. Do not assume that an entry in the cash account is assessable.

2. Review existing commission requests. Requests relying on the Raubenheimer ruling require reconsideration. Adding evidence of a commission does not overcome the jurisdictional limitation identified in Turner.

3. Make payment disputes specific. Identify the entry, amount and reason for challenge. Obtain bank records and correspondence supporting an alleged omitted payment before assessment.

4. Link Part 18 questions to the court’s task. Explain the actual assessment issue and why the information is necessary and proportionate. Put the request and proposed order before the judge through a proper application.

For Litigation Practitioners

1. Answer commission questions clearly. A successful jurisdictional objection is not a substitute for meeting fiduciary obligations. Silence can create suspicion and unnecessary proceedings.

2. Keep the bill and cash account distinct. Record transactions accurately and ensure payments towards fees can be reconciled against the bill. Do not treat an ATE premium as a solicitor’s disbursement merely because the firm paid it for the client.

3. Choose the remedy before issuing. Where the objective is an account of potential secret profits, advise on the appropriate accounting proceedings or complaint route, rather than treating section 70 as a general investigatory mechanism.

4. Address the economics. Explain the likely recovery, expense and risks before pursuing separate litigation. The court’s concern about disproportionate satellite proceedings is particularly significant where the possible commission is very small.

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Conclusion

Turner draws a firm boundary around solicitor and own client assessment. The cash account enables the court to calculate the balance due on the assessed bill; it does not confer jurisdiction to investigate and determine separate ATE-commission claims. Part 18 cannot enlarge that jurisdiction, and certification need not await resolution of disputes extraneous to the bill.

The corresponding message for solicitors is equally clear: the procedural route may be unavailable, but their fiduciary obligations remain. For practitioners, the task is to identify the correct remedy without turning a narrowly defined costs assessment into a wider accounting action.

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Analysis: Mackenzie Costs | costlawyer.co.uk

Citation: Stephen Turner v Coupland Cavendish Limited (trading as Gowing Law) [2026] EWCA Civ 1204

Full judgment available at: The National Archives

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