When is a Retainer a Contentious Business Agreement?
Broadfield Law UK LLP (formerly BDB Pitmans LLP) v Barnes [2026] Costs LR 781 – 3rd June 2026
Author Note: This summary was written by Colin Campbell, Consultant to Kain Knight, and is taken from Kain Knight’s June 2026 Costs Case Law Update. Colin is a former Costs Judge at the Royal Courts of Justice and brings extensive experience in costs law, including as joint editor of Costs Law Reports and as an accredited costs mediator.
Why the Court of Appeal’s Guidance Matters
The judgment of the Court of Appeal provides useful guidance about the requirements of a Contentious Business Agreement between a firm of solicitors and their client under s.59 Solicitors Act 1974.
The wording of the section is ponderous in terms of how the law has developed over the past 50 years : it provides that a CBA must be in writing and requires that the solicitor is to be remunerated “…by a gross sum or by reference to an hourly rate, or by a salary, or otherwise, and whether at a higher or lower rate than that at which he would otherwise have been entitled to be remunerated”.
What that means in practice is that a CBA is an agreement as to what will be charged so that the client knows what he is letting himself in of by way of costs. It also has practical effects. The client does not have a right to challenge the charges by detailed assessment under s.70 of the Act, but if the solicitors wish to collect their fees they must apply to the court under s 61 for a determination of the validity and effect of the agreement and for an order for its enforcement.
That will be permitted only if the court finds the charges to be fair and reasonable.
The Client’s Argument
In BBB Pitmans LLP, the solicitors had sued in the County Court for their unpaid fees and interest. The client’s defence was that the proceedings were an abuse and should be struck out because the contract for the payment of the charges was a CBA. Accordingly, the solicitors could only apply to the court under s.61 to enforce it: what they could not do was precisely what they had done: to issue a claim for recovery in the County Court.
Why the Argument Failed
That argument failed, the Court of Appeal holding that the retainer lacked the certainty to be a CBA and was merely providing an indication of the hourly rates of charge which the solicitors were proposing to use when they calculated their bill. It followed that the proceedings were not an abuse and should not be struck out.
Practical Takeaway for Solicitors and Clients
The importance of that is that if either the solicitor or their client wish to use a CBA, that should be clearly understood at the outset so that the formalities of s.59 are complied with.
That will require, in particular, that the agreement is in writing and that the terms are certain: for example, that if the parties agree that the solicitor will receive a specified monthly salary for doing the work, the client will know exactly how much they will have to pay the solicitor each month, in which case, there will be no need for a bill of costs to be delivered when the work is done.
If the client fails to pay, the solicitor’s remedy is enforcement under s.61 and for the client, it is that the agreement will be scrutinised by the court to ensure that the charges are fair and reasonable. In that eventuality, it would, indeed, be an abuse for the solicitors to sue for their fees, but that was not the situation in BBB Pitmans LLP as the Court of Appeal held.
Kain Knight’s June 2026 Costs Case Law Update, written by Colin Campbell, can be viewed by clicking here.
