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Inadequate Estimate Fails To Establish Special Circumstances Under s70(3) Where Client Would Have Made The Same Choices | Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO) | Special Circumstances Section 70 Solicitors Act 1974

A solicitor's failure to provide adequate cost estimates will not establish special circumstances under section 70(3) where the client's conduct demonstrates they would have made the same choices regardless. Costs Judge Leonard dismissed this application for assessment of 19 bills totalling £195,954.60.

🔑 Key Points:
• Preliminary estimate of £10,000–£15,000 did not create special circumstances when superseded by client conduct
• Payment against outstanding balance constitutes agreement to pay under Menzies v Oakwood [2024] UKSC 34
• Client's email stating "when liberty is at stake its not a time to go for the cheapest" proved fatal to application
• 17-month delay in challenging bills weighed heavily against finding special circumstances
• Restraint order not unusual in substantial fraud prosecution

📋 Case Summary:
Case: Biggar v Howard Kennedy LLP [2026] EWHC 132 (SCCO)
Judge: Costs Judge Leonard
Court: Senior Courts Costs Office
Holding: Application under section 70 Solicitors Act 1974 dismissed — no special circumstances established

⚖️ Why This Matters:
This decision confirms that deviation from preliminary estimates alone will not justify late assessment applications. Costs practitioners must advise clients that their conduct during the retainer — particularly continued instructions despite knowledge of rising costs — will be scrutinised. The test is whether better information would have led to different decisions.

🎯 What The Court Decided:
1. First three bills were "paid" — court had no jurisdiction under section 70(4)
2. Initial £10,000–£15,000 estimate was expressly preliminary and quickly superseded
3. Client seeking €1.32 million funding demonstrated understanding of true cost scale
4. March 2023 email showed client would have continued regardless of updated estimates
5. Restraint order and enforcement action were not out of the ordinary
6. Application dismissed in its entirety

📚 Topics Covered:
• Special circumstances under section 70(3) Solicitors Act 1974
• Payment of solicitor's bills — Menzies v Oakwood applied
• Preliminary cost estimates and client reliance
• Implied agreement to pay from conduct
• Restraint orders in fraud prosecutions
• Time limits for assessment applications

👨‍⚖️ Judge:
Costs Judge Leonard

💼 Useful For:
Costs Lawyers | Costs Draftsmen | Solicitors | Legal Cashiers | Practice Managers | Litigation Funders

🔗 Links:
📖 Read the full blog post: https://www.tmclegal.co.uk/special-ci...
⚖️ Judgment on BAILII: https://www.bailii.org/ew/cases/EWHC/...

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📚 Related Cases:
• Menzies v Oakwood [2024] UKSC 34
• Falmouth House Freehold Co Ltd v Morgan Walker LLP [2010] EWHC 3092 (Ch)
• Stone Rowe Brewer LLP v Just Costs Ltd [2015] EWCA Civ 1168
• Reynolds v Stone Rowe Brewer [2008] EWHC 497 (QB)
• Harrison v Eversheds [2017] EWHC 2594
• Mastercigars Direct Ltd v Withers LLP [2007] EWHC 2733 (Ch)

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⚠️ Disclaimer: This video is for educational purposes only and does not constitute legal advice. Always seek professional guidance for specific costs matters.

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