Hammond v Herrington Carmichael LLP [2026] EWHC 701 (SCCO)

Judgment date: 24 March 2026

https://caselaw.nationalarchives.gov.uk/ewhc/scco/2026/701

Overview

Costs Judge Whalan. Unsuccessful application by the claimant for a s 70 Solicitors Act 1974 assessment of the invoices delivered by the defendant law firm. Invoices were Interim Statute Bills, and no special circumstances were found to justify assessment by the court.

Case summary

Preliminary issues raised in a Part 8 claim under the Solicitors’ Act 1974 (‘the Act’); [1]. The claimant had instructed the defendant in financial remedy proceedings; [2].

The parties concluded four separate (but continuous) retainers between 10 August 2023 to 26 June 2025. Within the period the firm issued 29 invoices between 25 August 2023 and 7 August 2025 totalling £174,183.36; many of which were paid/part-paid; [2].

The claimant sought a detailed assessment of all of the invoices under section 70 of the Act. It was agreed that the two final invoices (June and August 2025) could be assessed; the defendant challenged the claimant’s entitlement in respect of the other invoices; [3].

The issues; [4]:

(i) Were the invoices delivered by the defendant to the claimant Interim Statute Bills (‘ISBs’) or did they comprise a series of interim invoices delivered as part of a ‘Chamberlain’ bill which became ‘final’ with the delivery of the last invoice in August 2025?

(ii) Further, or alternatively, can the claimant demonstrate, insofar as it may be necessary for him to do so, ‘special circumstances’ pursuant to s 70(3) of the SA 1974, such that it would be just to order an assessment?

Judgment

(a) Interim Statute Bills or a ‘Chamberlain’ Bill?

The claimant argued that the invoices were not ISBs, but rather a Chamberlain bill, representing continuous proceedings and delivered with the final invoice; [5].

The defendant cited Richard Slade & Company plc v Erlam [2022] EWHC 325 (QB), [2022] Costs LR 489, Abedi v Penningtons [2000] 2 Costs LR 205 and Boodia v Richard Slade & Company [2024] Costs LR 753. From which three general propositions emerged; [6]:

(i) The burden of proving that the retainer provides for the delivery of ISBs, in contrast to requests for interim payments generally, falls on the receiving party;

(ii) When construing the retainer, it is necessary to refer to the relevant contractual provisions as a whole; and,

(iii) In determining whether a retainer does allow the solicitor to render ISBs, the court should resolve any fundamental ambiguity against that construction.

The judge considered the four separate retainers from throughout the period and the contents of the Client Care Letters, Terms of Business letters and annexed Standard Terms of Engagement; [7] to [14].

Conclusion: the invoices were ISBs because the Terms of Engagement were unequivocally clear, providing for the delivery of interim invoices and stating that they have the status of ISBs; [16].

Invoices delivered by the defendant to the claimant exhibited all the relevant requirements of ISBs: they were drafted with considerable detail; the claimant was provided with a clear breakdown of the costs, expenses and disbursements; and they were signed, provided a payment due date and displayed clearly his right of assessment under the SA 1974; [16].

(b) Solicitors Act assessment

The judge considered section 70 of the Act ([17]) and the findings on ISBs to conclude that some of the invoices delivered by the defendant to the claimant could not be the subject of a SA 1974 assessment.

The judge referred to Oakwood Solicitors Limited v Menzies [2024] UKSC 34 where the Supreme Court provided guidance on the question of ‘payment’ in section 70 of the Act. It was agreed that many of the invoices had been paid by the claimant; [18].

Conclusion: the court could not order an assessment of the nine invoices delivered and paid more than 12 months before the claimant issued his Part 8 claim; [19].

For the remaining 18 disputed invoices, which were delivered (and paid or part paid) between 18 July 2024 and 29 Mary 2025; [20]:

• An assessment of three invoices could be ordered at the discretion of the court and subject to the finding of ‘special circumstances’ (pursuant to section 70(3) of the 1974 Act).
• The other 15 disputed invoices (dated between 27th August 2024 and 29th May 2025) were subject only to the discretionary power of the court.

(c) Special circumstances

Whether special circumstances exist is essentially a value judgement (Falmouth House Freehold Co. Ltd v Morgan Walker LLP [2010] EWHC 3092 (Ch), per Lewison J). The circumstances do not have to be exceptional, and to determine what is ‘out of the ordinary course’ requires consideration of the circumstances of the particular case (CJ Rowley in Masters v Charles Fussell & Co LLP [2021] EWHC B1 (Costs); [21] and [22].

In Raydens Ltd v Cole [2021] 7 WLUK 538 Leonard CJ added that:

‘a helpful test is to consider whether there is something in the fees claimed by the invoices, or in the circumstances in which they were charged, which “call for an explanation”’ [23]

The claimant argued special circumstances on the basis that his costs became unreasonable and disproportionate, that a pension disclosure error had increased his costs, and that it was unusual that his costs were largely for paid by his brother-in-law; [24] to [27].

Counsel for the defendant highlighted that the claimant gave repeated assurances to the defendant that his costs would be paid, assurances which encouraged the defendant to continue to act on his behalf (particularly following a period when the firm had come off court record); [29]. The claimant was a capable litigant in person who exhibited a clear understanding of time limits – he had started the Part 8 claim himself; [29].

The claimant did not demonstrate the existence of special circumstances, and nothing called for an explanation or the scrutiny of the court; [30]:

• The defendant delivered regular, itemised invoices that exhibited very detailed breakdowns of the profit costs, expenses and disbursements that the claimant had incurred during each relevant period.
• The costs were incurred pursuant to the defendant’s instruction, he was aware of his ongoing, accumulating liability, and most of the invoices were paid.
• Although the substantive parties’ costs may have been incurred to a level that was disproportionate inter partes, this is not relevant to a solicitor/client assessment, which proceeds on an indemnity basis.
• It was deemed unlikely that the presumption of reasonableness would be dislodged on the facts of the case.
• There was no identifiable or sustainable criticism of the defendant during the period of representation.
• The claimant was content to be represented by the firm, illustrated by his willingness to re-engage the defendant.

Conclusions:

• As special circumstances were not demonstrated the judge concluded that the court could not exercise its discretion to order the detailed assessment of 3 invoices.
• For the remaining 15 invoices, it was not appropriate for the court to exercise discretion to order a detailed assessment (because of the reasons outlined in paragraphs [29] and [30]).