Hammond v Herrington Carmichael LLP - Solicitors Act Claim

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  Hammond   v Herrington Carmichael LLP [2026] EWHC 701 (SCCO) (24 March 2026)

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| | | Neutral Citation Number: [2026] EWHC 701 (SCCO) |
| | | Case No: SC-2025-APP-000874 |
IN THE HIGH COURT OF JUSTICE
SENIOR COURTS COSTS OFFICE

| | | Thomas More Building, Royal Courts of Justice
Strand, London, WC2A 2LL |
| | | 24/03/2026 |
B e f o r e :

COSTS JUDGE WHALAN

Between:
| | Carl Brendan Hammond | Claimant |
| | - and - | |
| | Herrington Carmichael LLP | Defendant |

**The Claimant appeared in person
Ms Aldred (instructed by Herrington Carmichael LLP) for the Defendant

Hearing dates: 23 February 2026**

HTML VERSION OF APPROVED JUDGMENT ____________________

Crown Copyright ©

3. This judgment was handed down remotely at 10.30am on 24 th March 2026 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
5. .............................
7. COSTS JUDGE WHALAN
9. Costs Judge Whalan:
10. Introduction
11. This judgment determines a number of preliminary issues raised in a Part 8 claim issued by the Claimant against the Defendant under the Solicitors' Act 1974 ('SA 1974'). Page references in parenthesis refer to the Hearing Bundle ('HB', 1-864), and the Claimant's Supplementary Bundle ('CSB', 1-6).
13. The Claimant instructed the Defendant from 10 th August 2023 to 26 th June 2025 (with an effective hiatus between January and March 2025) in family finance remedy proceedings. The litigation was protracted and comparatively complex. The parties concluded four separate (but continuous) retainers during the relevant period. The Defendant delivered to the Claimant 29 invoices between 25 th August 2023 and 7 th August 2025 for costs, disbursements and VAT in the total sum of @ ?174,183.36. These invoices are helpfully set out in a table at HB 460-1. It is common ground that many of these invoices were paid/part-paid by the Claimant.
15. The Claimant has applied for a s.70 SA 1974 detailed assessment of all of the invoices delivered by the Defendant. It is agreed that such an assessment can be carried out on two invoices, namely 225141 (dated 27 June 2025) and 226664 (dated 7 August 2025). The Defendant challenges the Claimant's entitlement in respect of the other invoices.
17. Issues
18. This judgment addresses a number of core issues in the proceedings:
20. (i) Were the invoices delivered by the Defendant to the Claimant Interim Statute Bills ('ISBs') or did they comprise a series of interim invoices delivered as part of a 'Chamberlain' bill which became 'final' with the delivery of the last invoice in August 2025?
22. (ii) Further, or alternatively, can the Claimant demonstrate, insofar as it may be necessary for him to do so, 'special circumstances' pursuant to s.70(3) of the SA 1974, such that it would be just to order an assessment?
24. Interim statute bills or a 'Chamberlain' bill
25. The Claimant submits that the invoices delivered by the Defendant were not ISBs but rather an entire Chamberlain bill, representing continuous proceedings and delivered effectively with the last invoice dated 7 th August 2025.
27. The Defendant cites a number of relevant authorities, namely Richard Slade & Company plc v. Erlam [2022] EWHC 325 (QB), [2022] Costs L.L. 489, Abedi v. Penningtons [2000] 2 Costs L.L. 205 and Boodia v. Richard Slade & Company [2024] Costs L.L. 753. Three relevant, general propositions emerge from the authorities as a whole. First, the burden of proving that the retainer provides for the delivery of ISBs, in contrast to requests for interim payments generally, falls on the receiving party. Second, when construing the retainer, it is necessary to refer to the relevant contractual provisions as a whole. Third, in determining whether a retainer does allow the solicitor to render ISBs, the court should resolve any fundamental ambiguity against that construction.
29. The parties effectively agreed four separate retainers within the relevant period. Each contractual agreement comprised a Client Care Letter (sometimes supplemented by a Terms of Business Letter) and annexed Standard Terms of Engagement.
31. The first Client Care Letter is dated 9 August 2023 (HB 670-6). It contains the following relevant provision (HB 674):
33. Costs and Monies on Account
34. It is this Firm's normal practice to ask our clients to make a payment at the outset of the matter on account of our fees and the expected disbursements that we may incur on your behalf as the matter progresses. I should therefore be grateful, if you would please let me have the sum of ?1,000 as payment on account of these fees and disbursements.
35. This initial payment on your account will be used to settle any invoice outstanding from you and disbursements as your matter progresses. This firm's policy dictates that the initial payment on account should be maintained in order to meet your ongoing costs. It is not a deposit. If there is any sum of money remaining on your client account at the end of your matter after your final invoice has been raised, this amount will be returned to you at a bank account you nominate.
36. The second Client Care Letter is dated 10 July 2024 (HB 684-90). It refers to a Terms of Business Letter of the same date. It contains the following relevant provision:
38. 9. Billing Arrangements
39. It is our practice to bill monthly. We will be pleased to provide a detailed costs review on request at any stage of your matter.
40. The third Client Care Letter is dated 29 July 2024 (HB 694-701). It was incepted to progress an appeal that occurred during the interlocutory process and was sometimes referred to in submissions as the 'appeal retainer'. It refers to a separate Terms of Business Letter of the same date. It contains a clause (HB 699) entitled 'Billing Arrangements' in identical form to that cited in respect of the second retainer.
42. The fourth Client Care Letter is dated 24 March 2025 (HB 710-18). It also contained (HB 716) an identical 'Billing Arrangement' provision. It refers to a separate Terms of Business Letter of the same date. This contained the following relevant provision:
44. 4. Invoicing
45. We will raise invoices for work done on a periodic basis, whether on completion of a particular element of the work or otherwise.
46. Invoices must be settled in accordance with the enclosed Standard Terms of Engagement.
47. The Standard Terms of Engagement annexed to each retainer were revised by the Defendant on several occasions during the relevant period. The following provisions, however, were cited in each version or iteration of the Terms. The following quote is taken from the first version of the Terms provided to the Claimant in August 2023 (HB 679-83):
49. Invoicing
50. In many cases, we will normally render our invoice at or towards the end of your matter (a Final Bill). However, if your matter becomes protracted or we have notified you that Interim Statutory Bills (ISBs) will be issued regularly as the case progresses, we will deliver an ISB to you from time to time. An ISB is an invoice covering the work carried out up to the date of the ISB or a specified earlier date, and issued before the matter ends. This will help you to budget for costs. Also, we may ask you for further payments to settle disbursements that are in excess of the initial payment on account. The initial sum paid on account will not be accounted for in an ISB but will be shown as a credit in the Final Bill. Any reference in correspondence or on invoices to "an interim invoice" means an ISB.
51. Payment Terms
52. Invoices must be paid within 14 days of delivery to you. If payment is not made within the 14-day credit period, we will be entitled to charge you interest on the outstanding sum on a daily basis of 4% above HSBC plc's base rate from time to time in force from the date of delivery of the bill.
53. If payment is not made within the credit period, we reserve the right to decline to act any further and the full amount of the work done to that date will be charged to you.
54. The invoices delivered by the Defendant to the Claimant followed a common format, insofar as they comprised the Invoice, a breakdown or Billing Guide and a Covering Letter. The first invoice ? 200405 dated 25 August 2023 ? is illustrative of the process. The invoice (HB 462-63) sets out the costs, expenses and disbursements incurred for the relevant period (10-25 August 2023) and provides a payment due date (8 th September 2023). The invoice is signed and includes the following:
56. NOTES
57. 1. We may charge interest on unpaid bills and we will do so at the rate payable on judgment debts, from two weeks after delivery of our bill. In respect of non-contentious work, this is pursuant to Article 5 of the Solicitors (Non Contentious Business) Remuneration Order 2009.
58. >
59. 2. You may be entitled to have your charges reviewed by the Court. This is called "assessment". The procedure is set out in Sections 70, 71 and 72 of the Solicitors' Act 1974.
60. The Billing Guide (HB 464-67) outlines a very detailed breakdown (by date, time and fee earner, with an accompanying narrative) of all the costs and charges incurred during the relevant period. The Covering Letter (HB 468) refers to the 'invoice' and summarises sums due from the Claimant.
61. The Claimant's submissions are summarised at Section B of his (undated) Skeleton Argument as follows:
63. 2. The Defendant acted under a single continuous retainer (matter reference HAM540) from August 2023 until July/August 2025.
64. 3. The invoices were sequential, related to the same litigation, and those invoices were expressly identified as a final bill closing the retainer.
65. 4. Work was ongoing and carried forward between invoices.
66. 5. The Claimant submits that, in substance, the bills were interim and not statute bills
67. The Claimant, in oral submissions, emphasised that the invoices comprised "very much a running account", notwithstanding the concession that each invoice did cover a defined period. To his mind, in other words, he was discharging his fees by instalments as his case progressed, in circumstances where the account, like the litigation, comprised a continuous process.
68. The Defendant, in summary, submits that the invoices delivered were ISBs. The Client Care Letters/Terms of Business and, more particularly, the Standard Terms of Engagement, contained a clear statement of a contractual right to render statute bills, as final bills for each relevant period. The invoices delivered, with the accompanying billing guides, were very detailed and reproduced, in practical terms, all the necessary elements of ISBs. The Defendant's counsel, Ms Aldred, sets out these submissions in more detail at paragraphs 9-17 of her Skeleton Argument dated 18 th February 2026. She refutes specifically the Claimant's assertion that the invoices demonstrated that 'work was carried forward'. On the contrary, submits Ms Aldred, each invoice was clear that it comprised a complete and effectively final account for the relevant (often monthly) period. Billing, in other words, was in no way accumulative, as each invoice recorded a separate piece or tranche of work detailed in the invoice and billing guide.
70. I am satisfied, on the proper contractual interpretation of the retainer(s) that the invoices delivered by the Defendant to the Claimant were ISBs, and not just a series of interim invoices delivered as part of a Chamberlain bill. The Terms of Engagement are, in my conclusion, unequivocally clear. They provide for the delivery of interim invoices and state that they have the status of ISBs. Indeed, the 'Invoicing' provision provides for no real, alternative characterisation, given that: 'Any reference in correspondence or on invoices to "an interim invoice" means an ISB'. Invoices delivered by the Defendant to the Claimant exhibited all the relevant requirements of ISBs. They were, in fact, drafted with considerable detail, meaning that the Claimant was provided with a clear breakdown of the costs, expenses and disbursements. They were signed, provided a payment due date and displayed clearly his right of assessment under the SA 1974. I find accordingly that the 29 invoices delivered by the Defendant to the Claimant between 25 August 2023 and 7 August 2025 were interim statute bills within the meaning of the 1974 Act.
72. Solicitors' Act Assessment
73. Section 70 of the SA 1974 provides (where relevant) as follows:
75. 70. Assessment on Application of Party Chargeable or Solicitor
76. (1) Where before the expiration of one month from the delivery of a solicitor's bill an application is made by the party chargeable with the bill, the High Court shall, without requiring any sum to be paid into court, order that the bill be assessed and that no action be commenced on the bill until the assessment is completed.
77. (2) Where no such application is made before the expiration of the period mentioned in sub-section (1), then, on an application being made by the solicitor or, subject to sub-sections (3) and (4), by the party chargeable with the bill, the court may on such terms, if any, as it thinks fit (not being terms as to the costs of the assessment), order ?
78. (a) that the bill be assessed; and
79. (b) that no action be commenced on the bill, and that any action already commenced be stayed, until the assessment is completed.
80. (3) Where an application under sub-section (2) is made by the party chargeable with the bill ?
81. (a) after the expiration of 12 months from the delivery of the month, or
82. (b) after a judgment has been obtained for the recovery of the costs covered by the bill, or
83. (c) after the bill has been paid, but before the expiration of 12 months from the payment of the bill,
84. no order shall be made except in special circumstances and, if an order is made, it may contain such terms as regards the costs of the assessment as the court may think fit.
85. (4) The power to order assessment conferred by sub-section (2) shall not be exercisable on an application made by the party chargeable with the bill after the expiration of 12 months from the payment of the bill.
86. The Defendant submits that many of the invoices (tabulated at HB 460-1) were paid by the Claimant. In Oakwood Solicitors Limited v. Menzies [2024] UKSC 34, the Supreme Court gave guidance on the question of 'payment' in s.70. It is common ground in this case that the various monies transferred from (or on behalf) of the Claimant to the Defendant constituted payment within the meaning of the 1974 Act.
88. The effect of this in combination with my findings on ISBs is that some of the invoices delivered by the Defendant to the Claimant cannot be the subject of a SA 1974 assessment. Specifically, the court cannot order an assessment of the nine invoices delivered and paid more than 12 months before the Claimant issued his Part 8 claim on 14 th August 2025. They are: 200405 (25 August 2023), 201690 (29 September 2023), 202391 (27 October 2023), 204546 (21 December 2023), 205426 (30 January 2024), 206520 (28 February 2024), 207616 (28 March 2024), 208840 (2 May 2024) and 210651 (27 June 2024).
90. Insofar as the remaining 18 disputed invoices delivered (and paid/part-paid) between 18 th July 2024 and 29 th May 2025, are concerned, an assessment of 3 invoices, 211203 (18 th July 2024), 211953 and 211946 (31 st July 2024), can only be ordered at the discretion of the court and subject to the finding of 'special circumstances', pursuant to s.70(3) of the 1974 Act. The other 15 disputed invoices (dated between 27 th August 2024 and 29 th May 2025) are subject simply to the discretionary power of the court.
92. Special Circumstances
93. In Falmouth House Freehold Co. Ltd. v. Morgan Walker LLP [2010] EWHC 3092 (Ch), Lewison J, having reviewed the case law relevant to special circumstances, stated (at paragraph 13) that:
95. Whether special circumstances exist is essentially a value judgement. It depends on comparing the particular case with the run of the mill case in order to decide whether a detailed assessment in the particular case is justified, and despite the restrictions contained in section 70(2).
96. Special circumstances do not have to be exceptional circumstances. As CJ Rowley confirmed in Masters v. Charles Fussell & Co. LLP [2021] EWHC B1 (Costs) (paragraph 60), they can be established by something out of the ordinary course, sufficient to justify departure from the general position under s.70 of the 1974 Act. The assessment requires invariably consideration of the circumstances of the particular case.
98. In Raydens Ltd v. Cole [2021] 7 WLUK 539, CJ Leonard, in citing with approval the guidance of Lewison J in Falmouth, added (paragraph 20) that:
100. In many ways, a helpful test is to consider whether there is something in the fees claimed by the invoices, or in the circumstances in which they were charged, which "call for an explanation". If they do call for an explanation or further scrutiny, that is a strong indication where there should be an assessment. This is not the time for the explanation to be given and evaluated in detail. That is the purpose of the assessment procedure and the scrutiny it provides.
101. The Claimant cites four potential special circumstances, summarised (at Section C of his Skeleton Argument) as '(i) judicial findings on costs, proportionality and litigation conduct, (ii) pension disclosure issue, (iii) representation and escalation of costs, and (iv) assertions concerning third parties (Garry Moore)'.
103. The Claimant's core assertion is that the Defendant allowed his litigation costs to increase exponentially to a point where they were unreasonable and disproportionate. He cites specifically a comment made on 26 June 2025 by HHJ Farquhar (during the substantive proceedings) who stated:
105. > The first issue I have to raise, because it must be upper most in the minds of Mr Hammond and Ms Doherty, is the costs. They are frankly ludicrous. The costs for Mr Hammond total ?189,492.36. On behalf of Ms Doherty, she has managed to keep hers down to only ?176,605.05. The total costs between the two of them, and they must be more outraged than anyone else, are ?366,000. The reality is that there is one non-pension asset, which is the property, and that is valued at ?500,000. The costs are 73% of that asset. This is a failure of the system. The parties have been failed by the system?
106. The judge went on to refer to 'litigation misconduct' and stated: 'I simply look at the costs and accept there is litigation misconduct'. The third issue, representation and escalation of costs, is an essentially amplified repetition of this central submission.
107. During the interlocutory process of the financial proceedings litigation, an issue arose as to the valuation of the Claimant's pension. Papers disclosed by or on behalf of the Claimant failed (at least initially) to include a Cash Equivalent Value ('CEV'), and it seems that the submission contributed to some confusion or protraction of the proceedings. The Claimant cites the following paragraph from the Respondent's (Ms Doherty) s.25 statement:
109. Had we been provided with a CEV at the commencement of the proceedings, or at least earlier within the proceedings, then it may not have been necessary for us to have pursued whether it was possible to serve a pension order in Ireland and we would almost definitely have had a different focus. We would have known that an off-set was a more realistic possibility. A breakdown of those unnecessary costs can be provided to the Court, if necessary.
110. It is submitted, in other words, that the omission was an error and that this mistake, in turn, contributed to the unreasonable inflation of costs.
111. One unusual feature of the Claimant's representation in the substantive litigation was the fact that his legal costs were largely paid or indemnified by Mr Garry Moore, his brother-in-law. After paying the first nine invoices delivered by the Defendant (25 th August 2023 ? 27 th June 2024, in a total sum of ?39,461), the Claimant essentially ran out of money. Thereafter, his invoices were paid from monies drawn down from an escrow account, set up with funds provided by Mr Moore. Mr Moore deposited ?120,000 (?50,000 x 2, plus ?20,000) into this account. The Claimant's submission that this arrangement contrasts with the run of the mill case and justifies a detailed assessment.
113. The Defendant submits that the Claimant's special circumstances submissions 'do not bear scrutiny'. The fees, expenses and disbursements were incurred on the instruction of the Claimant who, like his ex-wife, was determined to pursue the litigation 'to the bitter end'. At all times the Claimant knew about the costs that he was incurring, as he was being billed monthly (or at least very regularly), and he latterly had regular conversations with the firm about costs. The fact that the costs incurred may be held to be disproportionate on an inter partes evaluation is of little or no relevance to a Solicitors' Act detailed assessment, as the bill is assessed on the indemnity basis. The Claimant made no contemporary criticism of his legal representation by the Defendant. His subsequent allegations are unpersuasive, as demonstrated by the fact that he was willing to enter (or re-engage) in four retainers, culminating in an agreement dated 24 th March 2025. There is no evidence at all to suggest that the Defendant's work for the Claimant was inadequate and that this led to the unreasonable inflation to his costs liability. Insofar as the pension issue is concerned, Ms Aldred considered this (in some detail) at paragraph 28 of her Skeleton Argument, where she points out the error was essentially that of the Respondent, for failing to acknowledge or accept that a foreign (Irish) pension could never have been made subject to a pension sharing order by an English court. The escrow account was a necessary security against non-payment by the Claimant, in circumstances where the Defendant would not have continued to act without such a guarantee of reasonably prompt payment. The arrangement was endorsed enthusiastically by the parties ? the Claimant, Mr Moore and the Defendant ? and it is conceded that monies drawn down on this account constituted 'payments' for the purposes of the SA 1974. There is no credible or sustainable suggestion that these payments were in any way unauthorised.
115. The Defendant then submits (Ms Aldred, Skeleton Argument, paras 33-36) that a number of additional points militate against the court exercising the discretion in favour of the Claimant. Throughout the period of his representation, the Claimant gave repeated assurances to the Defendant that his costs would be paid, assurances which encouraged the Defendant to continue to act on his behalf, particularly after January-March 2025, when the firm had come off the court record. The Claimant was a capable litigant in person who exhibited a clear understanding of time limits; he started initially the Part 8 claim himself. The fact that his substantive costs were underwritten by Mr Moore suggests that he may ultimately struggle to satisfy any order for costs made following ongoing assessment proceedings.
117. I am not satisfied that the Claimant has demonstrated the existence of special circumstances. There is nothing, in my conclusion, that 'calls for an explanation' or the scrutiny of the court. Pursuant to the retainer(s), the Defendant delivered regular, itemised invoices that exhibited very detailed breakdowns of the profit costs, expenses and disbursements that the Claimant had incurred during each relevant period. These costs were incurred pursuant to his instruction and he was aware of his ongoing, accumulating liability. Most of the invoices delivered by the Defendant were paid, within the meaning of the SA 1974. Although the substantive parties' costs may well have been incurred (individually and collectively) to a level that was disproportionate inter partes, that is of no general relevance to a solicitor/client assessment, which proceeds on the indemnity basis. It is hard to foresee that the presumption of reasonableness would be dislodged on the particular facts of this case. No identifiable or sustainable criticism is made of the Defendant during the period(s) of representation, and the fact that the Claimant was content to be represented by the firm is illustrated by his willingness to re-engage the Defendant after March 2025.
119. Insofar as special circumstances are not demonstrated, it follows that the court cannot exercise its discretion to order the detailed assessment of the 3 invoices 211203 (18 th July 2024), 211953 and 211946 (31 st July 2024). Insofar as the remaining 15 disputed invoices are concerned, it is not appropriate, for the reasons and submissions summarised at paragraphs 29 and 30 above, for the court to exercise discretion to order a detailed assessment.
121. Summary and conclusions
122. My conclusions, in summary, are as follows:
124. (i) The retainer(s) concluded by the Claimant and the Defendant provided for the delivery of Interim Statute Bills (ISBs).
125. (ii) The invoices delivered by the Defendant to the Claimant dated between 10 th August 2023 and 7 th August 2025 were ISBs.
126. (iii) The Claimant is not entitled to an assessment of the invoices that were delivered and paid between 25 th August 2023 and 27 th June 2024.
127. (iv) The Claimant is not entitled to an assessment of the invoices delivered and paid/part-paid dated between 18 th July 2024 and 29 th May 2025. There are no special circumstance arising in this case and/or, at the discretion of the court, a detailed assessment is refused.
128. (v) The Claimant is ? by concession and agreement ? entitled to a detailed assessment of two invoices, 225141 (27 th June 2025) and 226664 (7 th August 2025), should he wish to pursue this.
130. After handing down this judgment, I will lease with the advocates as to a re-listing for the determination of any outstanding, ancillary issues.

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