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“Genuinely, what is the issue?!” A Receiving Party was put to their election to disclose CCFA documents or to rely on other evidence of the retainer. Read on to find out what happened…

Mr Justice Edward Johnson’s recent decision on an Election Application reiterates the importance of the Receiving Party providing evidence to the Paying Party to show that they are liable to pay their solicitors’ costs.

Saint Benedict’s Land Trust v London Borough of Camden Council & Anor [2025] EWHC 1576 (Ch) (24 June 2025)

On 23^rd December 2020, Saint Benedict’s Land Trust (“the Appellant”) was ordered to pay London Borough of Camden Council’s and Preston City Council’s (“the Respondents”) costs of the Petition Proceedings up to 20^th November 2020 in an Order made by Judge Halliwell. In the Appellant’s Points of Dispute, they raised the issue of whether the Respondents were actually liable to pay their solicitors’ costs, referring to the case of Hollins v Russell [2003] EWCA Civ 708, stating that they were “entitled to this information in order to establish the validity of the individual client retainers”. The Appellant also stated that the Respondents’ Bill of Costs did not include details within their retainers such as the date the agreement was entered, hourly rates charged and whether there were definitions regarding the case being “successful” or “unsuccessful”. In their reply to the Points of Dispute, the Respondents stated that their retainer with their solicitors, Greenhalgh Kerr, were Collective Condition Fee Agreements (CCFA) dated 30^th September 2013 and 14^th December 2017, the hourly rates were set out in their Bill of Costs, there was no breach of the indemnity principle and the bill certificate was signed ensuring its accuracy. The Respondents also stated that they would not be disclosing their CCFAs to the Appellant. On 4^th August 2021, an Order was made for the Respondents to file their CCFAs. The Respondents filed witness statements exhibiting their CCFAs with Greenhalgh Kerr and requested that these statements were not disclosed to the Appellant.

The Appellant made an Election Application pursuant to para 13.13 CPR47 PD, which states the following:

“The court may direct the receiving party to produce any document which in the opinion of the court is necessary to enable it to reach its decision. These documents will in the first instance be produced to the court, but the court may ask the receiving party to elect whether to disclose the particular document to the paying party in order to rely on the contents of the document, or whether to decline disclosure and instead rely on other evidence.”

The Appellant requested sight of the Respondents’ CCFAs or that they provide other evidence to prove their liability to pay costs to their solicitors. District Judge Bartley made an Order on 7^th September 2022 with five issues that to be resolved between the Parties in the Assessment Proceedings:

1. Whether the Respondents’ CCFAs were privileged documents
2. Whether the Respondents’ should be put to election in respect of the CCFAs
3. If the CCFAs should be in redacted form if disclosed
4. Definition of “success”
5. Detailed assessment of Respondents’ costs.

A hearing to resolve these issues took place in January 2023. DJ Bartley had seen the CCFAs in the witness statement exhibits but the Appellant had still not seen these. A judgment was handed down in an Order dated 12 September 2023 in which DJ Bartley refused the application, meaning that the Respondents were not put to their election in relation to the election documents.  This decision was the subject of the subsequent appeal.

The appeal was brought to Mr Justice Johnson, who stated that DJ Bartley’s decision could not stand and the appeal had to be allowed. Justice Johnson was concerned that the issues surrounding the Election Application also caused a substantial delay in the detailed proceedings and substantial additional costs in both the detailed assessment proceedings and the appeal. Mr Justice Johnson referred to three examples of case law to come to his decision:

• Pamplin v Express Newspapers Ltd[1985] 1 WLR 689 – it is the duty of the court to require the Claimant to prove the facts upon which he relies if the defendant raises a factual issue, which is real and relevant and not a sham or fanciful dispute.
• Hazlett v Sefton Metropolitan Borough Council[2000] 4 All ER 887 – whilst there is a presumption that the Receiving Party will be responsible for their solicitor’s costs, the Paying Party may have a genuine reason for believing the Receiving Party will not be liable to pay his solicitor’s costs, should the agreement be unlawful of unenforceable.
• Hollins v Russell [2003] EWCA Civ 708 – whether there was a challenge in good faith to any item of costs, the taxing master could put the Receiving Party to his election.

Mr Justice Johnson stated that all that must be shown to put a party to its election under para 13.13 CPR47 PD is that there must be a genuine issue, which the Appellant had demonstrated.

The Respondents claimed the Appellant raised no genuine or any issue regarding their solicitors’ own charges, however Mr Justice Johnson held that the Appellant did raise a genuine issue or dispute as to the liability of the Respondents to pay the fees under the CCFAs, as opposed to a sham or fanciful issue or dispute as per Pamplin. Mr Justice Johnson stated,

“Looking at the terms of the CCFAs and the outcome of the Petition Proceedings, I do not find it possible to conclude that there is no issue at all as to whether the trigger for payment of Greenhalgh Kerr’s own fees under the CCFAs was actually released”.

Mr Justice Johnson then stated,

“The bar is set fairly low, in terms of the test for determining whether a party should be put to its election pursuant to Paragraph 13.13. All that has to be shown is a genuine issue.”

The genuine issue was held to arise because:

“the outcome of the Petition Proceedings was somewhat unusual. The sum which was paid with the intention of satisfying the Petition Debt was paid, but was then returned, in circumstances where Judge Halliwell decided that the Respondents had not been justified in returning the payment. The Petition was dismissed, but the Respondents were awarded their costs of the Petition Proceedings up to 20^th November 2020. Looking at the terms of the CCFAs and the outcome of the Petition Proceedings, I do not find it possible to conclude that there is no issue at all as to whether the trigger for payment of GK’s own fees under the CCFAs was actually released.”

Mr Justice Johnson concluded that it is appropriate for the court to ask the Respondents to elect whether to either disclose their CCFAs to the Appellant or to provide other evidence to prove their liability to pay the relevant costs. The Election Application was allowed and the Respondents were asked to make their election in relation to the CCFAs.

How can PIC assist?

If you are the Receiving Party, we will ensure that any details of funding agreements are properly and efficiently dealt with to avoid any delays to costs negotiations and assessment proceedings. This also extends to costs that are incurred during the costs negotiations and detailed assessment stages.

We have considerable experience in dealing with and advising upon retainer related matters, whether there is a genuine issue, and whether disclosure of documents or other evidence is likely to be ordered.  Mr Justice Johnson noted his displeasure in the case at hand in the events and position, given the costs and delays that had occurred, and we can help all parties avoid being in such a position.

Rebekkah Haughton, Costs Consultant

04.09.25