Weightmans: Retainer wording ambiguous as best, says judge
National law firm Weightmans is to have nearly 50 invoices totalling £3m subjected to a detailed assessment after failing to convince a judge they were interim statute bills.
Costs Judge Nagalingam found that the firm’s retainer did not give it an express right to raise interim statute bills – a complete and final invoice for a specific period of work, rather than a payment on account – while the bills did not describe themselves as such.
“Taken in conjunction with the guidance (at the foot of each invoice) that any challenge to an invoice should, in order, firstly follow the defendant’s complaints procedure, then refer to the Legal Ombudsman, and finally seek an assessment under a misquoted section of the Solicitors Act, the guidance the defendant elected to provide undermines client protections under the act – if each issued invoice is a bona fide interim statute bill,” he said.
This was because the process of complaining would take longer than the one-month statutory limit under which a client has an absolute right to assessment to a statute bill under the Solicitors Act 1974.
“Additionally, those with professional legal costs law expertise will plainly know there is no Part 111 of the Solicitors Act 1974, and that the intention was presumably to refer to Part III. However, a lay client cannot be expected to understand this was an error.
“So, not only was the wording ‘not emphatic’ [the description used by Weightmans’ counsel], it was, in at least one instance, plainly incorrect.”
Weightmans had acted for John Kelly and his company, Lansdowne Group, in bringing a £37m claim, which failed in 2022 after an 11-day trial.
It issued 47 invoices during the retainer period totalling just short of £3m. The last six invoices were not paid, leading to Weightmans obtaining default judgment for £618,126, plus interest and costs.
The claimants sought a stay as well as delivery of a compliant bill on the basis that the invoices had not been statute bills.
Judge Nagalingam rejected Weightmans’ contention that the retainer allowed it to issue interim statute bills – such provision as it contained was “in ambiguous terms at best”, he ruled.
“That is the case even when put in the full collective context of client care letter, terms & conditions, bills as they appeared upon presentation, and the contemporaneous correspondence I have been taken to.”
Section 11 of the terms and conditions was headed ‘Billing arrangements and payments on account’ and the judge noted that there was no distinction drawn between the two.
It talked about issuing a ‘statutory interim bill’. While a lay client was “not necessarily expected to understand the correct legal terminology. A solicitor is”, the judge stressed.
“Referral to ‘a statutory interim bill’ is similar but not the same terminology as an ‘interim statute bill’, such that a lay client could reasonably be expected to treat the terms as meaning the same thing.”
He added that it would not have been “onerous” for each invoice to bear the words, ‘This is an interim statute bill’, followed by an extract of the relevant provisions showing the time limits under the Solicitors Act 1974.
There was also overlap between some bills amounting to around £11,000 and some adjustments needed to four bills of a similar sum – small amounts in the context of the fees overall but not “trifling” or de minimis, the judge held.
Judge Nagalingam said Weightmans had not presented “a clear and compelling argument as to why any bills which feature an overlap can still be a valid interim statute bill”.
He went on to dismiss the contention that the invoices together comprised a Chamberlain bill, finding that the overlapping bills had broken the chain “on multiple occasions”.
Tom Blackburn, a costs consultant at London and Cheltenham firm Croft Solicitors, who acted for the claimants, commented: “It was obviously the right decision but is a perfect example of why the Solicitors Act isn’t fit for purpose anymore and why it needs bringing into the 21st century. This piece of statute is 50 years old and hasn’t been updated since.”
He said that explaining the different types of bill to a lay client was “very difficult and it takes a long time because you’re essentially giving them a crash course in costs and the intricacies of a very niche area of legal practice so that they can give you informed instructions”.
While not commenting specifically on Weightmans, Mr Blackburn added that he was “constantly surprised by the state of some solicitors’ files” – whether at small firms or large – and the failure to spell out the billing mechanisms and procedures clearly for clients in their retainers and terms and conditions.
Until the Act was updated, “cases like this will continue to appear”, he predicted.
We have approached Weightmans for comment.
Leave a Comment