The article on the decision by Master James in Hanley v JC & A Solicitors (news, 8 January) provoked a rather animated response from parts of the profession, with suggestions that work of this sort – assisting clients in the exercise of their rights under the Solicitors Act 1974 – is ‘satellite litigation’ and that the business models of firms like mine, checkmylegalfees.com, are somehow ‘unsavoury’.
This is surprising, not only because the absolute right to have fees determined by a court has been enshrined in primary legislation since 1843, but also because the profession has the upper hand in these cases. Costs are assessed on the indemnity basis – meaning that doubt is resolved in favour of the solicitor – and in order for a client to ‘win’ on any assessment under the act, they have to demonstrate not only that they have been overcharged, but also that they have been overcharged by 25% or more.
So, solicitors who bill in accordance with the legislation and the accounts rules, and who charge a reasonable amount, have nothing to fear. Solicitors who overcharge by 24% have little to fear, other than perhaps their own conscience. If on every case we received a reasonable bill that was in accordance with the charging arrangements, or even a bill that was just a little too high, then our business would die very quickly. That is far from the case.
The common theme in respect of all cases is that the delivery of a bill that complies with the act and the accounts rules, and gives a detailed explanation of what has been charged and how it has been calculated (along with proper notification of the client’s rights to have the bill examined by the court under the act) is very rare indeed. That may explain why in most cases there has been virtually no complaint from clients. If they are told, wrongly, that the current legislation says that they will inevitably lose 25% of damages and that is what then happens, is it a surprise that they have not complained thus far?
In any event, suggesting that clients who have lost part of their compensation because of billing practices like those above should waive their statutory right and go unaided through internal complaints procedures or the ombudsman, rather than seeking expert assistance in negotiating a complex and arcane area of the law, is insupportable – particularly where there is such a fundamental misunderstanding of the rules in parts of the profession.
The amount in real money terms is immaterial. We represent clients of all sorts and in respect of costs arising from all legal disciplines. If it seems to us that any clients have been overcharged by more than 25%, then we are proud to fight for their statutory right to have the costs determined by the court.
I will not comment in too much detail on the decision in Hanley as it may yet go further, and there are a number of similar cases in which judgment is pending or are yet to be heard. I do not believe however that a different decision would have opened floodgates, unless of course there are large numbers of personal injury solicitors whose billing arrangements are insupportable, or who simply ignore the contractual terms and deduct 25% of damages come what may. If that is the case then these are ‘floodgates’ that need to be opened so that the overcharging can be rooted out.
Mark Carlisle is director of checkmylegalfees.com, Sheffield