The law governing challenges to solicitors’ bills – the Solicitors Act 1974 – is in dire need of reform. It is overly complex, artificial and wholly out of step with modern-day practice. This point has been made repeatedly by practitioners, costs judges and other judges. In Belsner v Cam Legal Services [2022] EWCA Civ 1387, meanwhile, master of the rolls Sir Geoffrey Vos blasted the ‘outdated and illogical’ distinction in the rules between contentious and non-contentious business, saying the act was in ‘urgent need of legislative attention’.
Nearly four years later, we appear to be creeping towards a new regime. A working group of the Civil Justice Council published reform proposals in May and the deadline for responses closes next week. Its final report is expected early next year.
Some of the CJC’s ideas are more popular than others. For example, there is broad support for its plan to scrap the troublesome distinction between contentious and non-contentious business; and for its proposal to abolish another problematic concept – the ‘statute bill’ – with which the courts have spent endless hours grappling.
In the new regime, the key concept would be an overarching principle that fees charged should be ‘fair and reasonable’ for the work done, judged objectively. That is a sensible approach, although the principle must be carefully defined to avoid satellite litigation.
The more controversial element of the CJC’s report is its proposal that fee disputes worth up to a certain threshold – it suggests £50,000 – should be dealt with by the legal ombudsman, only proceeding to the courts where there is ‘good reason’ to do so. The idea of using the ombudsman to resolve modest fee disputes was first put forward by the MR in Belsner. As the Law Society has pointed out, however, LeO is already struggling to meet consumer demand. It has been battling with a huge backlog of cases over many years and has consistently failed to meet its own complaints-handling targets. Without significant additional resources these delays will only get worse, especially as we now have the added factor of clients using artificial intelligence to bring more disputes, which take longer to sort out. And the longer it takes to resolve claims, the more important it is that the rules allow solicitors to receive some payment while the dispute is ongoing.
Concerns surrounding the ombudsman’s role are not just about delay, however. There is a genuine question as to whether the complaints body currently has the necessary expertise to properly judge what a ‘fair and reasonable’ fee would be in more complex areas of the law, such as clinical negligence.
The prospect of a complete overhaul of the rules surrounding challenges to solicitors’ bills is a big deal for the profession, with much at stake. It is a topic that lawyers cannot afford to ignore. Yet there is a strong chance that all the time committed by the CJC working group, and all the hours spent by lawyers and costs professionals in scrutinising the proposals and offering revisions, will end up being wasted.
These reforms will require legislative action. Will that ever happen? Will the government expend the time and resources needed to introduce niche legislation about lawyers’ bills? Or will this report, when the final version is submitted to government next year, simply be plonked on top of a growing pile of such documents now languishing in a back room of the Ministry of Justice, where it will gather dust on top of last year’s report from the CJC on reform of litigation funding, and its 2015 report on reform of damages-based agreements (which must now be curling at the edges).
Somehow, reform proposals that primarily concern the legal profession, fees and funding struggle to make it out of that dusty filing cabinet – no matter how much work went into them.
Rachel Rothwell is editor of Gazette sister magazine Litigation Funding
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