COURT OF APPEAL ALLOWS APPEAL IN BELSNER -V- CAM: DECISION CAN BE FOUND HERE

The Court of Appeal have allowed the appeal in Belsner -v- Cam Legal Services. The judgment [2022] EWCA Civ 1387 can be found here.  I will conduct a detailed analysis of the decision in the near future.  Here are the key closing paragraphs.

(The judgment is now available on BAILII here)

THE CASE

The defendant firm of solicitors had acted for the claimant in a personal injury action.   The action settled for £1,916.98.  The firm of solicitors deducted 25% of the award (£385.50) as a contribution towards costs and paid the balance to the claimant.  The claimant later issued a Part 8 application asking that the firm of solicitors deliver a final statute bill.  The statute bill came to a figure higher than the damages. However the solicitors had only deducted the £385.50.  On appeal to the High Court judge it was held that informed consent had not been given to the client.

THE DECISION ON APPEAL

The Court of Appeal have reversed that decision.  The assessment of costs at this stage of a portal claim was a non-contentious matter.

THE JUDGMENT IN THE COURT OF APPEAL

The ultimate question on an assessment of non-contentious costs, taking into account
the factors stated in the 2009 Order, is: what overall amount would it be fair and
reasonable for the client to pay? As Morgan J said in Mastercigars v. Withers [2009] 1
WLR 881 at [102]:
Even if the solicitor has spent a reasonable time on reasonable items of work and
the charging rate is reasonable, the resulting figure may exceed what it is
reasonable in all the circumstances to expect the client to pay and, to the extent that
the figure does exceed what is reasonable to expect the client to pay, the excess is
not recoverable.
97. I agree with the Client that, in all the circumstances, she ought as a matter of good
professional practice to have been told the level of fixed costs that she would recover if
the case settled within the RTA portal. But that does not necessarily mean that the
Solicitors’ Bill was unfair. The question is only whether it was fair and reasonable in
all the circumstances, having regard to the factors in the 2009 Order for the Client to
pay an additional £385.50 on top of what was recovered from the third party. I see no
reason why she should not be required to do so. She has filed no evidence suggesting
that she is not a reasonably sophisticated client. She accepted in her points of dispute
that she expected that she might have to pay some of her base costs. DJ Bellamy
assessed the Solicitors’ reasonable base costs at some £1,392 plus VAT, which
exceeded the £500 plus VAT recovered from the third party. She has never suggested
that she did not understand that she would have to pay a success fee on top of some of
her base costs. The success fee charged fee was capped by statute at 25% of recovered
damages. Lavender J admittedly applied the success fee (of 15% of base costs) assessed
by DJ Bellamy to the base costs of £500 recovered from the third party, but he thought
the Solicitors had a legal duty to obtain the Client’s fully informed consent to charging
more by way of base costs than was recovered from the third party. He was wrong about
that.
98. The Client in this case has never had any real or economic interest in the pursuit of this
costly litigation. Only checkmylegalfees.com have such an interest. The Solicitors
capped their fees voluntarily at a fair and reasonable level after the event, even if they
ought to have told the Client what she would recover by way of fixed costs in the RTA
portal, and even if they ought to have agreed in advance when they entered into the
CFA to the cap they later applied voluntarily. Mr Ben Williams KC, counsel for the
Solicitors, told us in argument that the Solicitors would not have “dreamed” of doing
anything other than making a proportionate deduction from the damages as opposed to
charging the Client their full base costs and the maximum possible success fee. In
future, I hope that solicitors will not suggest CFA or other fee arrangements to their
clients that allow for fees that they would not dream of actually charging.
99. The Client, in effect, argued that the full ramifications of the fully informed consent
requirement found by the judge (but not upheld by me) should be read back in to the
assessment through the requirement of fairness in the 2009 Order. I do not agree. I think
the overall Bill was fair and reasonable. I would, therefore, re-assess the total base costs
and success fee payable as being £821.25 plus VAT (£500 + £321.25, the latter figure
being £385.50 less VAT). I am conscious that, on one analysis, this assessment could
be construed as allowing base costs in excess of £500, since a success fee of 15% of
base costs was fixed by DJ Bellamy and not appealed thereafter. In the extremely
unusual circumstances of this case, I am reassessing the Bill from scratch because the

costs are non-contentious ones which were assessed as contentious ones. For the
reasons I have given, I have not found it helpful to do so in the traditional way of
assessing base costs and then the success fee. Nothing I have done in that regard will
be relevant to future cases. I have simply applied Morgan J’s dictum and an overall
approach to fairness and reasonableness in the convoluted circumstances of the three
stages of this case.
100. For the reasons that I have given in Karatysz v SGI Legal [2022] EWCA Civ 1388,
which was heard immediately following this case, the question to ask in order to
determine “the amount of the bill” under section 70(9) of the 1974 Act is “what is the
total sum that the bill is demanding be paid to the Solicitors, whether or not all or part
of that total sum has actually been paid”. Accordingly, in this case, the amount of the
Bill was £821.25 plus VAT, and the Client achieved no reduction from that Bill as a
result of seeking an assessment for the purposes of section 70(9) either before DJ
Bellamy or in this court. The prima facie position would, therefore, be that the Client
should pay all the costs unless there are special circumstances under section 70(10) of
the 1974 Act. I am conscious that there may be other arguments as to costs in the
complex circumstances of this case, so will leave the parties to agree the costs here and
below, and we can determine them on paper if necessary.
Conclusion
101. For the reasons I have given, I would allow this appeal, and order that the base costs
and the success fee payable by the Client in this case should be assessed in the total
sum of £821.25 plus VAT. The sum of £295.50 must be repaid by the Client to the

costs are non-contentious ones which were assessed as contentious ones. For the
reasons I have given, I have not found it helpful to do so in the traditional way of
assessing base costs and then the success fee. Nothing I have done in that regard will
be relevant to future cases. I have simply applied Morgan J’s dictum and an overall
approach to fairness and reasonableness in the convoluted circumstances of the three
stages of this case.
100. For the reasons that I have given in Karatysz v SGI Legal [2022] EWCA Civ 1388,
which was heard immediately following this case, the question to ask in order to
determine “the amount of the bill” under section 70(9) of the 1974 Act is “what is the
total sum that the bill is demanding be paid to the Solicitors, whether or not all or part
of that total sum has actually been paid”. Accordingly, in this case, the amount of the
Bill was £821.25 plus VAT, and the Client achieved no reduction from that Bill as a
result of seeking an assessment for the purposes of section 70(9) either before DJ
Bellamy or in this court. The prima facie position would, therefore, be that the Client
should pay all the costs unless there are special circumstances under section 70(10) of
the 1974 Act. I am conscious that there may be other arguments as to costs in the
complex circumstances of this case, so will leave the parties to agree the costs here and
below, and we can determine them on paper if necessary.
Conclusion
101. For the reasons I have given, I would allow this appeal, and order that the base costs
and the success fee payable by the Client in this case should be assessed in the total
sum of £821.25 plus VAT. The sum of £295.50 must be repaid by the Client to the
Solicitors.