Contentious confusion

The rules surrounding remuneration certificates and clients' entitlement to them frequently cause confusion.

Admittedly, the rules can be challenging.

For instance, these certificates are available only for non-contentious work - but what is meant by non-contentious? It includes, for instance, preparatory work done with a view to the issue of contentious proceedings, provided no proceedings were actually issued.

Moreover, what might appear to be contentious work is actually defined as non-contentious.

Contentious work is defined as being any work done in connection with the issue of proceedings before any court or the Employment Appeals Tribunal, the Lands Tribunal, and in which proceedings are actually issued, but not proceedings before any other tribunal.

Arbitration proceedings are contentious.

Anything else, including work before any tribunal, which includes work before the Employment Tribunal that does not go to appeal, is, by exclusion, non-contentious work.

Another aspect of the regulations that causes much misunderstanding is whether solicitors have to give notice to clients of their right to require the solicitors to apply for a certificate.

There is no such requirement unless the solicitors either wish to sue for the unpaid account or have taken costs by deduction from monies held on behalf of the client, and the client has objected in writing to the amount of the costs.

Before the solicitors can sue on their unpaid bill, they have to give the client written notice of his right to require a certificate to be obtained, unless the costs have already been the subject of assessment by the court.

The point was illustrated in a case in which the solicitors were instructed in connection with a personal injury claim.

Before they got round to issuing proceedings, their retainer was terminated.

The solicitors drew up and delivered their bill.

The client, having presumably discussed the matter with her new solicitors, complained that she had never been informed of her right to require a remuneration certificate.

The solicitors responded that they did not have to, as the work was contentious in its nature.

They were wrong.

No proceedings had actually been issued, so the work was non-contentious.

However, they escaped on a technicality because they had not issued proceedings to recover their costs.

A good decision for the solicitors, but apparently achieved more by luck than judgement.

Every case before the adjudicator is decided on its individual facts.

This case study is for illustration only and should not be treated as a precedent