A billionaire client (C) has been successful in an application in the High Court for an assessment of a series of invoices totalling more than $35 million, raised by C’s legal representative US firm Wilmer Cutler Pickering Hale and Dorr (D).

In Safra v Wilmer Cutler Pickering Hale and Dorr LLP [2026] EWHC 703 (SCCO), Costs Judge Leonard examined whether there was justification to order an assessment of the invoices in the context of the Solicitors Act 1974, specifically:

• Whether the letter of engagement constituted a Contentious Business Agreement (CBA) within the meaning of Section 59 of the 1974 Act
• If D was entitled to deliver interim statutory invoices and whether the invoices were compliant with the relevant requirements

Background

D had acted for C in a dispute over the estate of C’s father, a wealthy Brazilian banker, which involved several complex arbitrations.

C’s application of 17 December 2024 disputed the invoices rendered between 10 December 2022 and 17 September 2024 in relation to this matter.

C contended that “$35 million is an unusually large sum to incur over less than two years in even the heaviest of litigation”. Not only did C submit that time charges were high, they argued expenses and disbursements were also “of a surprising nature and amount”.

It was common ground that the work undertaken was ‘contentious business’ for the purpose of the 1974 Act and that the engagement letter did not need to be a labelled a CBA, to be a CBA.

Notably, the engagement letter contained a right to apply for assessment, which is not consistent with a retainer being a CBA.

The benefits of a CBA for D

It would have suited D if the engagement letter had been deemed a CBA because under section 60(1) of the 1974 Act, costs incurred under a CBA shall not be subject to assessment. D could have resisted the application on that basis.

That said, 61(4B) of the Act allows for assessment of the number of hours worked and whether they are excessive, when a CBA is relied on and when the client objects to the costs generally, providing the client has not alleged the CBA is unfair or unreasonable; the scope for C to challenge would be limited in these circumstances.

Engagement Letter not a CBA as lacked certainty

Despite D submitting that the terms of the engagement letter were negotiated with C – an experienced and commercially sophisticated client with very experienced lawyers, and that the  arbitrations had been extremely complex; their likely course unpredictable at the time of the engagement letter; and the full scope of the work unknown at the outset, it was determined by the Costs Judge that D’s engagement letter did not amount to a CBA.

There was acknowledgment that the long hours and expenses were commensurate with the nature and scale of work and with the value, weight and complexity of the litigation, but the judge expressed concern with the lack of financial information provided to C:

“unilateral, open-ended provisions for hourly rate increases, the amounts and timing of which were entirely at the discretion of the Defendant, are inconsistent with the requisite characteristic of certainty.”

D had not kept C informed of costs and failed to advise of rate increases of up to $2,095 per hour. The engagement letter provided for only a broad range of current hourly rates, capable of unilateral alteration by D. No fixed fee provision or a fee fixing mechanism existed.

It was made clear that certainty is paramount when determining whether a retainer is a CBA.

The Judge went on to say that if he had found the engagement letter to be a CBA, he would have set it aside in any event, because the unreasonably incorporated unilateral open-ended provisions, prevented C from challenging increases to hourly rates.

Chamberlain Bill, not Interim Statutory Invoices

Although it was determined that the engagement letter allowed D to deliver interim statutory invoices, and that monthly statements had been provided, the description of the monthly statements in the engagement letter and the invoices did not correspond.

The invoices were found to lack “the requisite element of finality” to be compliant interim statutory invoices.

Instead, they were held to collectively constitute a single Chamberlain bill, delivered to C on 17 September 2024, capable of assessment in its entirety under section 70(2) of the Solicitors Act 1974, as the bill had already been partially paid.

The Judge made clear that he would have exercised the court’s discretion and established that “special circumstances” as per section 70(3) were applicable, to justify an order for assessment in any event, as there was an evident failure by D to provide adequate costs information.

“The Defendant’s failure to notify the Claimant of its hourly rate increases seems symptomatic of a lack of awareness of the importance of keeping the client fully informed of the costs position. However much he would have known about what was being done for him, and however pleased he may have been at the level of service provided, the Claimant was not regularly being kept aware of what it was costing him.”

Costs Judge Leonard identified numerous failings throughout this matter relating to communications between lawyer and client regarding costs, which ultimately resulted in the order for assessment. Concluding the judgment with a determination that special circumstances would have been established due to inadequate costs information, even if the invoices had met the interim statutory invoice criteria, exemplifies the extent of potential consequences if clients are not kept clearly and fully informed on costs.

Anna Lockyer is a Senior Associate in the Costs and Litigation Funding Department at Clarion Solicitors. You can contact the team at civilandcommercialcosts@clarionsolicitors.com.