Court of Appeal have handed down their judgment in Thomson Snell & Passmore v Kenig -[2024] EWCA Civ 15.

Posted 19 January 2024

The case concerned whether, and to what extent, a beneficiary can obtain an order for an assessment of a solicitors’ costs pursuant to s.71(3) Solicitors Act 1974. The beneficiary argued that they should be allowed to have the solicitors’ costs assessed as there were ‘special circumstances.’ The solicitors argued that the beneficiary should not be allowed to have the costs assessed as there were no ‘special circumstances.’ The beneficiary won below and the solicitors unsuccessfully appealed.

It seems the discretion to make an order for such an assessment is wide and would seem to favour the beneficiary where there is doubt.    

The jury is still out, however, as to how much (if at all) a beneficiary’s hands are tied as to the extent to which they can seek a reduction to the solicitors’ costs. The suggestion (albeit obiter) is that if an executor has approved a solicitors’ bills (and the solicitor may have been instructed by an executor working at the same firm), the ability of a beneficiary to actually reduce a solicitors’ costs, in any meaningful way, may be extremely limited.

We expect there will have to be more to come on this issue as paragraphs 1-55 of the judgment do open a beneficiary’s door to obtain an order for assessment, but paragraphs 56-59 suggest that door, on an actual assessment, could be quickly shut again in light of the CPR.r.49.9 presumptions!

To read the full judgment click here ewca_civ_2024_15 thomas snell judgment