Broadfield Law UK LLP v Barnes [2026] EWCA Civ 698

Judgment date: 3 June 2026

https://caselaw.nationalarchives.gov.uk/ewca/civ/2026/698

Andrews, Lewison and Warby LJJ. The appeal concerned whether a solicitor’s retainer, charging by hourly rates for litigation work, qualified as a Contentious Business Agreement (CBA) under s 59 of the Solicitors Act 1974, despite not clearly telling the client what costs they were committing to.

Background

In 2018, Ms Barnes instructed Bircham Dyson Bell LLP (BDB), now Broadfield Law UK LLP, in her divorce and financial remedy proceedings. Key parts of the retainer identified fee earners, others that may be involved, their hourly rates and said that rates could increase over time. The retainer also gave estimates of likely overall costs for certain stages of the case but stated clearly that those were not fixed fees and might be revised.

The firm later delivered four statutory bills totalling over £139,000, of which Ms Barnes paid £39,000. In 2024, after the time limits for ordinary assessment had expired, the firm sued for the outstanding balance, limiting its claim to £75,000 plus interest. Ms Barnes argued that she relied on BDB’s initial estimate of £50,000 + VAT and that the firm did not supply any revised figures, despite the standard terms stating otherwise. Ms Barnes argued that the retainer was a CBA, so the firm should have applied under s 61 to enforce it. Both the district judge and HHJ Davies rejected that argument, relying on Chamberlain and Wilson v the Specter Partnership.

The Court of Appeal reviewed the history and function of the legislation. It noted that the statutory scheme is designed to protect clients as consumers of legal services, while the CBA regime exists to allow solicitors and clients to make binding bargains about costs, subject to the court’s power to intervene if the agreement is unfair or unreasonable.

The key question was whether the amendments made by the Courts and Legal Services Act 1990, which expressly added remuneration ‘by reference to an hourly rate’ to s 59, removed the need for the certainty identified in Chamberlain. The court held that they did not.

In October 2024, the county court held that the retainer was not a CBA because it was too uncertain, and the Court of Appeal agreed. The issue arose because, if the agreement had been a CBA, the solicitors’ claim for unpaid fees would have had to proceed under the special statutory enforcement regime, rather than as an ordinary court claim.

The law

The judgment explains two parallel statutory costs regimes. Under the ordinary regime, solicitors must deliver a bill under s 69, wait one month before suing, and the client has rights under s 70 to seek assessment of the bill, subject to time limits. Under the CBA regime, a written agreement as to remuneration for contentious business can displace those ordinary rights. If valid and fair, the agreed fee is generally binding.

However, where the CBA provides for remuneration by reference to an hourly rate, the client still has a limited right to assessment. The court may examine the number of hours worked and whether those hours were excessive but not re-assess the agreed hourly rate unless the agreement itself is challenged as unfair or unreasonable.

In Chamberlain, Lord Denning said that for an agreement to count as a CBA, there must be sufficient certainty regarding fees, and must tell the client ‘what he is letting himself in for by way of costs’. A CBA is a bargain fixing, or providing a sufficiently certain mechanism for fixing, what the solicitor is to be paid. Since Chamberlain, small amendments have been made to both sections of the 1974 Act. Both sections now make direct references to hourly rates and allow a client to ask the court to assess the number of hours of work carried out by a solicitor under an hourly rate.

Certainty is key

The court accepted that a valid hourly-rate CBA is possible. Examples would include an agreement that the solicitor will charge a single specified hourly rate throughout the case, or perhaps a specified rate up to a maximum number of hours. In such cases, the agreement contains a clear fixing mechanism; the agreed rate is applied to the hours worked, and the court can later assess the number of hours and whether they were excessive. But where the agreement leaves the applicable rate uncertain or allows the solicitor effectively to choose among rates or increase them without precise agreement, there is no true agreement as to remuneration.

Although some named fee earners’ rates were listed, those rates were subject to unspecified increases for promotion, qualification, or overhead changes. Other staff could also work on the matter at rates within broad ranges. The agreement did not identify with precision who would do which work, when, or at what settled rate. It therefore left open the possibility of work being done by more senior, more expensive personnel without any agreed mechanism enabling the client to know in advance what they would have to pay. The estimates in the letter did not cure that uncertainty, because they were expressly non-binding and subject to review.

Held

The court concluded that this was not an agreement as to remuneration, but only an indication of the basis on which the firm proposed to calculate its bills. It was therefore insufficiently certain to be a CBA. The appeal was dismissed, and the lower courts’ decisions were upheld.