The decision in Evans v Fletchers Solicitors [2026] EWHC 1523 (SCCO), relates to a claim under the Solicitors Act 1974, in which the Claimant sought the total disallowance of the Defendant’s base costs, success fee and an after the event insurance premium (“ATE”) totalling £61,615.13. The remedy sought by the Claimant was based on a failure by the Defendant to adequately explore (and advise the Claimant on) the availability of before the event insurance (“BTE”). The Claimant argued that if the availability of BTE had been adequately investigated, he would not have incurred a liability for a success fee and ATE premium. Although the Court refused to disallow the Defendant’s base costs, the success fee totalling £30,365.13 was disallowed and the Judge stated that the ATE premium would have been disallowed but it did not form part of the assessment.

Background

The Claimant instructed the Defendant to represent him in a personal injury claim following a road traffic accident. The claim was settled for damages in the sum of £250,000 and the inter partes costs were agreed. The Defendant issued an invoice to the Claimant totalling £61,615.13 which included a success fee of £30,365.13, capped at 25% of the relevant damages.

When the Claimant became a client of the Defendant, he completed a form in which he confirmed that he had the benefit of family legal expense insurance as part of his home insurance with Zurich. Despite this, the Defendant produced a Conditional Fee Agreement (“CFA”) which the Claimant signed. The Court found no evidence of enquiries being carried out by the Defendant in relation to the BTE until a new fee earner took over conduct of the case 2 years after the CFA was signed.

Zurich responded to the enquiry to attach a copy of the policy booklet. In response, the Defendant sent a letter in which they sought confirmation of various points regarding the legal expense insurance cover and stating that if a response was not received within 14 days, then they would advise the Claimant that he should purchase an ATE policy. Zurich responded to again attach the policy booklet and direct the Defendant to the relevant page concerning legal expenses covered by the Claimant’s policy. Despite this, the conducting fee earner took the view that she had been unable to establish that the BTE policy covered the Claimant’s legal expenses. The Defendant, therefore, wrote to the Claimant to confirm the same. On that basis, the Claimant agreed to an ATE policy being taken out.

Following settlement of the claim, the Claimant instructed a new firm to provide advice in relation to the fees he had been charged by the Defendant. Investigations were carried out by the new firm in relation to the BTE policies, whether the same would have covered the legal expenses of the Claimant, and whether the Defendant contacted them to investigate the potential for funding of the claim. The insurers refused to confirm whether the legal expenses of the claim would have been covered by the policy if pursued at the relevant time.

Issues

There were 4 issues for the Court to determine.

Issue 1 – Was the Defendant’s approach to the enquiries into alternative funding unreasonable?

The Court found that the enquiries made by the Defendant were lacking in numerous respects, but the fact that no enquiries were carried out until 2 years after the Claimant provided details of the potential BTE policy was significant. Furthermore, the Court found that the Defendant had mischaracterised the letter from Zurich as one which simply refused to indicate whether cover was available. The Court found that the letter sent to Zurich was drafted in a way which “sought to encourage a lacklustre response from any potential LEI insurer so that the existing CFA arrangement was not disturbed by any putative BTE cover.”

Issue 2 – Was there BTE with legal expense insurance which the Claimant could have used?

The Court found that whilst there could be no absolute confirmation of insurance cover, on the balance of probabilities, there was BTE that would have covered the legal expenses of the claim.

Issue 3 – Would the BTE mean that there would have been no deductions?

The Defendant argued that the £50,000 limit of indemnity on the BTE policy was insufficient and, therefore, it could not have been utilised regardless. Whilst the Court accepted this argument to an extent, it was noted that the limit of indemnity on the ATE policy taken out was also insufficient at £100,000. The Court also noted that there would have been the option to obtain a ‘top-up ATE policy’ to increase the level of indemnity to an adequate level.

Issue 4 – Would the Claimant have used it if it were available?

The Court accepted the Claimant’s evidence that if he had been made aware that instructing a solicitor associated with his BTE policy would have resulted in no, or fewer, deductions from his damages then he would have chosen that option over instructing the Defendant.

Conclusion

The Court declined to disallow the base costs. The Court distinguished this case from the decision in McDaniel & Co (a firm) v Clarke [2014] EWHC 3826 (QB). In that case there was a failure to advise a Claimant to use trade union funding, which, if it had been used, would have left the Claimant with no direct liability to her solicitors. Here, the alternative funding was BTE which is an indemnity, therefore the Claimant would have remained liable for the Defendant’s base costs.

An argument was raised by the Claimant that the limit of indemnity on the unused BTE (£50,000) should be set against the Defendant’s bill. The Court rejected that argument because the Claimant had won his claim and recovered costs from the paying party. The only costs that would not have been recovered were costs that were unreasonable, and unreasonable costs would not have been recoverable under the BTE policy in any event.

However, the Court did disallow the success fee on the basis that it would not have been payable if the BEI policy had been utilised.

This case is a reminder to all litigators of the importance of undertaking thorough enquiries into alternative methods of funding at the outset.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercial@clarionsolicitors.com

Background

In CILEX v Mazur and others [2026] EWCA Civ 369, the Court of Appeal provided important clarification on the interpretation of the phrase “carry on the conduct of litigation” in the Legal Services Act 2007 (“LSA 2007”). The judgment addresses the question whether an unauthorised person, working under the supervision of an authorised individual, may lawfully perform litigation tasks without committing a criminal offence. It further provides some guidance on what acts are unlikely to constitute the conduct of litigation.

The appeal arose from a High Court decision which held that unauthorised persons who performed acts constituting the conduct of litigation, even under the supervision of an authorised individual, were themselves carrying on a reserved legal activity contrary to section 14 of the LSA 2007. That interpretation had significant implications for law firms, law centres, and access to justice.

Legislation

The LSA 2007 identifies the ‘conduct of litigation’ as a reserved legal activity. Schedule 2 provides that it includes:

• The issuing of proceedings;
• The commencement, prosecution and defence of proceedings; and
• The performance of ancillary functions in relation to those proceedings.

Section 14 makes it a criminal offence to carry on a reserved legal activity unless the person is authorised to do so. The central issue on the appeal was whether an unauthorised employee who performs litigation tasks under supervision is themselves ‘carrying on’ the conduct of litigation, or whether that activity remains attributable to the authorised individual who retains responsibility for the case.

Can unauthorised persons ‘carry on the conduct of litigation’ if they carry out acts that constitute the conduct of litigation under the supervision of authorised individuals?

At first instance, the judge drew a distinction between assisting or supporting an authorised individual in litigation and conducting litigation under supervision.

The judge held that only the former was lawful. On that analysis, unauthorised persons could assist with litigation work but could not perform acts which fell within the statutory definition of the conduct of litigation, even where an authorised person supervised their work and retained ultimate responsibility.

That approach reflected the submissions of the Law Society and the SRA and would have required close, step‑by‑step oversight by authorised individuals, including prior approval of documents before they were used, even in urgent cases.

The Court of Appeal rejected that interpretation. It held that the ordinary meaning of the statutory language distinguishes between the tasks which make up the conduct of litigation and the direction, control and responsibility for those tasks.

The Court concluded that an unauthorised person does not carry on the conduct of litigation merely because they perform litigation tasks for and on behalf of an authorised individual. Provided the authorised person retains responsibility and puts in place appropriate arrangements for delegation and supervision, it is the authorised person who is carrying on the reserved legal activity.

The Court, therefore, held that the distinction adopted at first instance between ‘assisting’ and ‘conducting litigation under supervision’ was incorrect.

What acts constitute conducting litigation?

The Court of Appeal declined to set out an exhaustive list, however, it confirmed that a number of activities are unlikely to constitute the conduct of litigation, including:

• Pre‑litigation work;
• Giving legal advice in connection with proceedings;
• Correspondence with opposing parties;
• Gathering evidence;
• Instructing and liaising with experts or counsel; and
• Signing statements of truth or other documents which the CPR permits a legal representative (defined in CPR 2.3 including a solicitor’s employee) to sign.

Delegation and supervision

The Court emphasised that the LSA 2007 does not mandate a single model of supervision. There had to be proper direction, management supervision and control. However, the level of supervision required will depend on the circumstances. In some cases, particularly complex or high‑risk matters, closer oversight and prior approval may be appropriate. In other, more routine cases, supervision may properly consist of structured systems, regular meetings, and sampling of work.

The statute does not require prior authorisation of every task in every case. The question is whether the authorised individual has retained responsibility and exercised appropriate direction and control.

The Court of Appeal made clear that details of the appropriate supervision were a matter for the regulators. Following the judgment, the Law Society has issued a Practice Note which is key reading for firms, solicitors and their employees as it sets out its view of good practice and practical steps firms can take. Further guidance is awaited from the Solicitors Regulation Authority.

Conclusion

The Court of Appeal’s judgment has provided reassurance across the legal industry and has restored a practical and workable model of legal service delivery which aligns with the regulatory objectives of the LSA 2007, including improving access to justice. It confirms that the LSA 2007 is concerned not with who performs individual litigation tasks, but with who retains responsibility for them. Unauthorised staff may lawfully carry out litigation tasks under appropriate supervision, without committing a criminal offence, provided responsibility remains with an authorised individual. However, an element of uncertainty remains particularly as what amounts to appropriate supervision depends on the circumstances, and we can therefore expect to see further developments.

Ellena Hunter is an Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com

Background

In Taktouk v The King [2025] EWCA Crim 1473, the Court of Appeal (Criminal Division) delivered an important judgment on the recovery of costs by private prosecutors from central funds following a confiscation appeal. Although the underlying confiscation appeal had succeeded earlier in 2025, this decision concerned how, when, and to what extent private prosecutors may recover their costs under section 17 of the Prosecution of Offences Act 1985 (‘POA 1985’).

The proceedings arose out of a private prosecution for fraud. Following conviction, confiscation proceedings were pursued, resulting in a confiscation order. On 5 February 2025, the Court of Appeal allowed an appeal against the confiscation order on the basis of fresh evidence that may have undermined the trial court’s assessment of the available amount. The private prosecutors applied for an order that their costs of resisting the confiscation appeal, amounting to almost £200,000, be paid out of central funds under section 17(1) POA 1985.

Application for costs out of central funds

The private prosecutors’ application made no reference to any attempts made to ensure that the case was prosecuted by an appropriate state prosecutor. Furthermore, no information was given regarding how the private prosecutors were selected to conduct the prosecution, or whether there was any tendering process involving either them or counsel. The Memorandum of Costs lodged in support of the application merely provided a breakdown of the total profit costs, Counsel’s fees, and disbursements.

Upon receipt of the application, the Court gave directions giving the Lord Chancellor leave to intervene and to lodge written submissions. This resulted in further information about the costs incurred being provided by the private prosecutors, by way of a witness statement. The private prosecutors provided details of how they came to be instructed, they confirmed that there was no tendering process and stated that the chance of the CPS agreeing to prosecute was very slim. It was further confirmed that the CPS and police were not provided with the results of the private prosecutors’ investigation until after the appellant succeeded in his appeal.

Therefore, the key points to be determined were the consequences of:

• The private prosecutors’ failure to supply the information required by rule 45.4 of the Criminal Procedure Rules;
• The failure to attempt to involve the police and state prosecuting authorities in bringing the case; and
• The failure to engage in a tendering process for solicitors and counsel.

The Court noted that it was open to them to decline to make any costs order under section 17 because of the serious failure in presenting the claim. However, it instead ordered that the private prosecutors be allowed only 50% of the costs which the costs officer determined as reasonably sufficient. This reduction was to reflect:

• The failure to lodge an adequate claim for costs in compliance with CrimPR 45.4(6)(c), and to state the law accurately in it. The specific failures being:
• The failure to communicate with the state prosecuting authorities either at the point when the prosecution begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
• The failure to test the market at either of the points identified at (a) above to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.
• The failure to disclose intelligence reports until the appeal proceedings were in progress.
• The failure to communicate with the state prosecuting authorities either at the point when the prosecution was begun in 2018 or at the point when confiscation proceedings were begun following conviction with a view to them conducting the proceedings.
• The failure to test the market at the point when confiscation proceedings were begun to establish the lowest amount which the prosecutor could reasonably have been expected to spend in order to have its case conducted and presented proficiently, having regard to all the relevant circumstances.

Whilst the Court did not exercise its discretion to disallow the private prosecutors costs, it did warn that the judgment in the present case and in BDI should serve as an explanation to how the Courts would approach the issue and future-non compliance with the requirements set out in the Criminal Procedure Rules may well result in the Court simply declining to make any order.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com

Background

In R v BDI & Ors [2025] EWCA Crim 1289, the private prosecutors applied for an order pursuant to section 17 of the Prosecution of Offenders Act 1985 that their costs of resisting the application for abuse of jurisdiction, and of the appeal of the same, be paid out of central funds. The Lord Chancellor was permitted to intervene in the application.

The private prosecutors alleged that they had suffered financial loss as a result of dishonest activity by the respondents which crossed national borders. They made their costs application in writing to the Registrar of Criminal Appeals in which they sought costs of £187,970.

Lord Chancellor’s Position

The Lord Chancellor submitted that the court should reduce the amount of the private prosecutor’s costs on the basis that there were serious deficiencies in the application for costs, and that the costs should be limited to those which would have been charged to the state if the CPS had conducted the prosecution. Alternatively, it was submitted that the costs of the solicitors’ work should be based on the guideline hourly rates and that counsel’s fees should only be allowed at a competitive market rate. Furthermore, the Lord Chancellor submitted that the private prosecutors failed to state in their application that they had taken no steps to involve the police and the CPS before commencing prosecution, and they failed to set out what steps they had taken to test the market before instructing their solicitors and counsel. Therefore, it was submitted that, in light of the failure to involve the police and ask the CPS to prosecute before issuing the summonses, the costs should be capped at CPS rates.

In summary, the Lord Chancellor’s core submission was that “the public purse should not have to pay increased costs when the private prosecutors took no steps to involve the state prosecuting authorities.”

Private Prosecutor’s Position

The private prosecutors denied that the application for costs was defective and submitted that there was no basis for the court to limit the costs to CPS rates. The private prosecutors referred to the correspondence with the CPS in which the CPS stated that the way in which the case had been handled to date demonstrated that the international reach of the solicitors could have benefits to a prosecution which a public prosecutor would find hard to match. Furthermore, the CPS had been offered the opportunity to take over the prosecution and declined to do so.

Judge’s Determination

Having considered the submissions of both parties, the Judge confirmed that its view was that:

“Any private prosecutor who fails to take appropriate steps or fails sufficiently to inform the court about them in his application for an order… puts himself at risk that the application will be refused, or that any award will be reduced… to the level of costs which would have been incurred if the state authorities had prosecuted the case.”

The Judge considered that it would always be important for the court to know whether the state prosecuting authorities were given a reasonable opportunity to make an informed decision as to whether they should undertake the prosecution. On this point, the Judge held that there were two points to consider. The first being that CPS rates may properly be considered if a private prosecutor acted without regard to whether the state was willing and able to prosecute (citing Fuseon Ltd v Senior Courts Costs Office [2019] EWHC 126 (Admin), [2020] Costs LR 251). The second point being that even if it was reasonable for the private prosecutor to undertake the prosecution, it may still be relevant to consider what expenses would have been incurred if the case had been conducted by the state prosecuting authority.

In analysing the facts and circumstances of the present case, the Judge made note that the private prosecutors did not inform the police or invite the CPS to consider the evidence relied upon until directed to do so by the District Judge who issued the summonses. By this point, significant work had been undertaken. Furthermore, within the letter to the CPS the private prosecutors expressed that they did not wish for the CPS to take over conduct of the proceedings. Whilst the private prosecutors were entitled to take the approach that they did, they thereby put themselves at risk in relation to recovering their costs from the public purse.

It was accepted by the Judge that the case was a complex one and had been well conducted by the private prosecutors. However, the Judge determined that the fundamental difficulty the private prosecutors faced was that they had failed to show that the police and the CPS, if given an appropriate opportunity at an appropriate stage, could not or would not have undertaken the prosecution. Therefore, they failed to show that they had acted reasonably in incurring expenses in excess of those which would have been incurred by the CPS. On that basis, the Judge was satisfied that there were circumstances which made it inappropriate for the private prosecutors to recover the full amount of costs which would otherwise have been awarded.

The Judge, therefore, ordered that the private prosecutors be paid out of central funds but be limited to the expenses which would have been incurred if the prosecution had been undertaken by the CPS.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com

This question was dealt with by Senior Costs Judge Rowley in The Personal Representatives of the Estate of Maurice Hutson (deceased) & Ors v Tata Steel UK Ltd [2025] EWHC 1594 (SCCO).

The Paying Party challenged the recoverability of the costs of obtaining a Grant of Probate (hereafter “Grant”) within the Points of Dispute as follow:

“The Paying Party refers to the case of Mosson v Spousal (London) Ltd [2016] EWHC 54 (QB) (25 January 2016) and submits that the costs of obtaining a Grant of Probate are not recoverable on an inter partes basis.”

At the Detailed Assessment hearing, the Paying Party submitted that the case of Mosson was an authority for the proposition that the costs of obtaining probate cannot be recovered as damages in claims pursued under the Law Reform (Miscellaneous Provisions) Act 1934. The Receiving Party submitted that the fact that the costs of applying for probate could not be claimed as damages was both ‘incontrovertible and irrelevant’ where these fees have been claimed as items of costs. The Receiving Party invited the Judge to dismiss the point of dispute on the basis that the only argument, the reliance on Mosson, was one of no substance. Whilst the Judge did not disallow the point of dispute, he was clearly not entertained by the argument.

The Judge stated that the nub of the Paying Party’s challenge was the one regularly made by Defendants faced with claims for the costs of probate, namely: would these fees not be required anyway as part of dealing with the administration of the Deceased’s estate? If so, they should not be claimed as a cost of the litigation.

It was agreed between the parties that a Grant was required for a Claimant to pursue a claim under the Law Reform (Miscellaneous Provisions) Act 1934. It was further agreed that if the only reason for the Claimant to obtain the Grant was for this purpose, then the reasonable costs of doing so would be recoverable. If a grant was obtained to administer the estate, then no more than the costs of obtaining a copy could be claimed as a cost of the litigation.

The Paying Party’s case was then how the Claimant was to prove that the Grant was taken out simply for the litigation, and that the need for the Grant should be exclusive to that. The Paying Party went further to say that if the Judge had any doubt as to whether the Grant was obtained exclusively for the litigation, it should resolve the doubt in the Paying Party’s favour, since it was a standard basis assessment, and disallow the Grant costs claimed. The Receiving Party did not accept that the exclusive test was appropriate.

The Judge also did not accept the Paying Party’s approach as it was his view that this was not a situation where there was likely to be any doubt. He stated that:

“The question was really how much evidence was required to establish that the Claimant would not have sought a Grant if it were not to make a claim?”

In the present assessment, the solicitors for the Claimants had provided evidence about the size of the relevant estates, and why grants were not required to deal with items such as bank accounts, which would often be released without great formality.

The Judge recognised that there was a lack of any recent or easily accessible authorities on this point, so gave the following guidance:

“In my view, the bar for establishing that the Grant was obtained for the purposes of the litigation is not a particularly high one. If the personal representative or administrator attended Court on the assessment of their costs, it would require no more than their confirmation that the grant had been obtained for the litigation for the costs of so doing to be allowed in principle. Consequently, the witness evidence of the two solicitors in these cases which is both detailed and backed by supporting documents is more than sufficient in my judgment to establish these claims.”

In light of this judgment, practitioners would be well placed if they contemporaneously documented their file to reflect why a Grant would not have been required but for the litigation. This may be helpful in resolving challenges on the recoverability of these costs at an early stage, but if not, would be a helpful document to use as evidence in support, as the solicitors did in the Hutson case, if the costs were disputed and the matter proceeded to a detailed assessment.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com

The matter of XX (a protected party by her husband and litigation friend YY) and ZZ v (1) Jordan Young (2) Aviva Insurance Limited [2025] EWHC 680 (SCCO) concerned the assessment of the Second Claimant’s costs with regards to quantum only.

Costs Judge Nagalingam heard a 3-day detailed assessment hearing, following which he heard oral submissions, and then assessed elements of the bill whilst sitting in private. The Judge then produced a written judgment with the outcome of the assessment. The primary purpose of this approach was as a result of concerns to avoid a disproportionate approach to the assessment of time spent on documents.

The written judgment provides the Judge’s comments on several elements of the bill which are commonly challenged within Points of Dispute.

Internal Correspondence

93.25 hours was claimed within the bill of costs for internal communications, of which 34.35 hours was delegating work. The Judge disagreed with the Defendant’s argument that internal correspondence was irrecoverable in principle and stated that delegation cannot be achieved without some communication medium between the conducting fee earner and a junior. This was caveated as the Judge highlighted that where a senior fee earner has delegated tasks, ‘it must not lead to increased costs in monetary terms as compared with the senior fee earner undertaking the task personally’.

The Defendant’s secondary position was that the time claimed was excessive and the Court was asked to “allow a reasonable and proportionate amount to take into account the issues previously raised in respect of the Claimant’s conduct.” However, the Judge found that this was ‘far too broad an invitation’ and in light of the Defendant’s failure to identify which items they challenge, and how much they proposed be allowed, made no further reductions to this category of costs.

Document Time

Excluding the Costs Assessment phase, the total time spent on documents was 516.3 hours. This was split as 205.57 hours at grade A, 27.78 hours at grade B, and 282.95 hours at grade D. The Paying Party offered a total of 182 hours; split as 60 hours at grade A, 10 hours at grade B, 12 hours at grade C, and 100 hours at grade D. The Receiving Party made no concessions to the time in the Replies to the Points of Dispute. The Judge ultimately allowed 125 hours at grade A, 19.4 hours at grade B, and 150 hours at grade D.

The categories of challenges to the document time, and the Judge’s decision on the same, are set out below.

Delegation

As with internal correspondence, delegation was challenged in the document time. The Judge commented that whilst the delegation of tasks to lower grade fee earners was encouraged, it ‘should not be to the detriment of expediency and efficiency’ and delegation should be done ‘with care’.

Duplication

The Judge found that there were too many occasions where a grade D fee earner was ‘needlessly involved’ and that there was no justification for the conducting fee earner to be involved in the more basic aspects of running the case which grade D should have been deferred to.

Legal Research

The limited time claimed for legal research was disallowed on the basis that ‘one cannot hold themselves out as being specialist without utilising the benefit of gained knowledge when engaging experts and suitable counsel.’

Consent forms / forms of authority

The Judge rejected the argument that such forms were an administrative task or that the preparation of the forms should be subsumed into the costs of the outgoing correspondence sending the same.

Case / Action plan

The Defendant’s argument that the use of a case / action plan was irrecoverable in principle was rejected. However, the Judge did caveat that the use of such a document is only effective when it results in a time saving.

Sharelink, passwords and pagination

The Judge held that time spent on sharelinks, passwords, and pagination was purely administrative work and was disallowed.

Collation

Whilst the Judge found that collating documents was not purely administrative work, there was a distinction between the ‘important fee earner task of selecting documents for relevance and simply reproducing a list of documents upon direction from another.’

Incoming correspondence

The Judge held that perusal of incoming correspondence was unrecoverable inter partes.

Despite the arguments set out not being particularly novel, the judgment is a welcome refresher of the Court’s approach to a number of issues that are commonly disputed at detailed assessment. It is likely the decision will feature in sets of Points of Dispute and Replies across the country in the coming weeks and months, and is one that both paying and receiving parties should familiarise themselves with.

Ellena Hunter is an Associate in Clarion’s Costs and Litigation Funding Team and can be contacted on 07979 199145 or Ellena.hunter@clarionsolicitors.com