In this case, a dispute arose as to the terms of the retainer as between the solicitor and client . It was broadly agreed that at the parties’ initial meeting in December 2017 it had been agreed that Mr Slade would act on Mr Murray’s behalf to the conclusion of his case for a fixed fee of £50,000 plus VAT including all disbursements. Following a PTR in or around May 2018 Mr Murray expressed dissatisfaction with his barrister and told Mr Slade “you had better get this sorted out”. In response, Mr Slade retained another barrister, Mr Moraes, for a fee of £25,000 + Vat. This was as against the previous barrister’s fee of £10,000 + Vat. The parties differed in their evidence as to what happened next.
A solicitor who wishes to rely on having been given informed consent for the purposes of CPR 46.9(2) must not only point to a written agreement which meets the requirements of the rule, but must also show that his client gave informed consent to that agreement insofar as it permitted payment to the solicitor of an amount of costs greater than that which the client could have recovered from another party to the proceedings. For this purpose, the solicitor must show that he made sufficient disclosure to the client.
Master Victoria McCloud (sitting as a Deputy Costs Judge in the SCCO) determined preliminary issues in the course of a detailed assessment proceeding under the Solicitors Act 1974, namely:
whether the entirety of the solicitors’ fees were incurred with the client’s consent in the sum claimed; or, alternatively
if not whether at least the level of success fee was incurred with consent.
The Court of Appeal has upheld the decisions of District Judge Bellamy (first instance) and Soole J (on appeal) that a 100% success fee in a low value personal injury claim which was fixed without any reference to the actual risk involved amounted to a cost of “an unusual nature or amount” under CPR 46.9(3)(c).