In this article, Connor Wright discusses the recent High Court decision in Baker Botts (UK) LLP v Carbon Holdings Limited & Anor [2025] EWHC 2225 (COMM) and its wider implications for solicitors seeking to recover unpaid fees.
Introduction
The litigation surrounding the recovery of solicitors’ fees from their clients is often far from straightforward. A number of my recent instructions have highlighted the challenges faced by firms. I have increasingly, in recent months, been reminded of the importance of litigators’ understanding of the process before proceedings are commenced. A lack of that understanding can yield unwanted surprises for an unwary solicitor who expects to pursue their fees as a simple debt claim.
The recent High Court decision of Deputy High Court Judge Elvin KC in Baker Botts (UK) LLP v Carbon Holdings Limited & Anor [2025] EWHC 2225 (COMM) serves as a useful reminder of the concept of common law assessment. In this brief article, I will consider the Baker Botts decision from that perspective. I will also take this opportunity to mention some of the other common issues that may arise in claims for the recovery of solicitors’ fees.
The Facts
The Baker Botts decision deals with a number of complex issues. Nonetheless, the fundamental premise of the claim will be familiar to many solicitors who litigate with the hope of recovering unpaid fees. Baker Botts (UK) LLP (“C”) brought a claim against Carbon Holdings Limited (“D1”) and EHI Limited (“D2”) with respect to unpaid fees. D1, in turn, brought a Part 20 claim against its subsidiary, Egypt Hydrocarbon Corporation SAE (“EHC”). C alleged that the Part 20 claim was brought to enable EHC to bring a professional liability claim against C.
In short, C applied to the High Court for:
(1) Security for costs of the Part 20 Claim in the sum of £2,016,777.45 against the Part 20 Claimant, EHC;
(2) Summary judgment and/or strike out of the Defence of D1 and D2 as follows:
a) For summary judgment in C’s favour pursuant to CPR 24.3 on its claim against the Defendants; and/or
b)For the Defence to be struck out pursuant to CPR 3.4; and
(3) For an order requiring D1 to pay C the sum of US$6,482,290.82 and EHI to be jointly and severally liable for US$1,082,513.94.
C alleged that it was engaged by D1 and its affiliates by a series of engagement letters dated between March 2019 and August 2021. The relationship between the parties was relevant to Baker Bots. For simplicity, I will not consider that issue in depth in this article, save as to note that issues surrounding the nature, detail and termination of solicitors’ retainers often arise, and should be evaluated at an early stage of prospective litigation. It is often helpful to pay mind to such potential issues when the claim is drafted.
Summary Judgment Application
As noted above, C made an application for summary judgment against the Defendants under CPR 24.3. This is a common tactic of solicitors who have taken to litigation to recover outstanding fees.
The nature of a claim by a solicitor for unpaid fees is that it is an unliquidated claim, for payment of a reasonable charge.[1] In many cases, that nature, combined with the manner in which a claim might have been defended, makes an application for summary judgment an attractive prospect to progress the claim. It is often a prime opportunity for litigants to invite the Court to determine preliminary points of law or construction, such as those relating to retainers or whether detailed assessment should be conducted under the Solicitors Act. As such, a well-timed application for summary judgment often permits claimants to narrow the dispute, thereby lowering the cost of litigation, accelerating proceedings, and promoting settlement.
Under CPR 24.3, summary judgment may be granted where:
- The Court considers that the party has no real prospect of succeeding on the claim, defence or issue; and
- There is no other compelling reason why the case or issue should be disposed of at a trial.
The Court in Baker Botts rightly recited the test for summary judgment as that being set out in Easyair Ltd (t/a Openair) v Opal Telecom Ltd [2009] EWHC 339 (Ch), at para 15. Key features of the test include:
- The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success;
- A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable
- In reaching its conclusion the court must not conduct a “mini-trial”.
The Defendants raised a number of issues within their defences, including:
- That there was a collateral contract under which only D1’s subsidiaries (and not the Defendants) would be individually liable to the Claimant for fees in respect of work done by BB for their benefit;
- Estoppel;
- Delivery of signed bills (now largely accepted as compliant).
- The reasonableness of the sums billed;
- That the 2021 Engagement Letters were limited to making a payment on account;
- Set-off arising from EHC’s cross-claim.
The Court noted that it was particularly inappropriate to investigate the allegations relating to collateral agreements and estoppel, concerning who was liable for C’s unpaid fees. The Court, nonetheless, recognised that it was undisputed that a certain level of fees arose under an agreement for work between C and the Defendants. The invoices relied upon by C provided that these amounted to US$95,944.84 against D1 and US$930,108.83 against D2, totalling US$1,026,053.67, subject to the issue of the reasonableness of the fees charged. The Court, accordingly, granted summary judgment against the Defendants with respect to the work that was undertaken by C for D1 and D2. Those sums were to be subject to common law assessment, as set out below. The balance of the claim is to be determined at trial.
Baker Bots illustrates that, while an application for summary judgment may not bring litigation to an end, it is a useful tool in the arsenal of solicitors in claims for recovery of fees.
Common Law Assessment
Deputy High Court Judge Elvin KC also reminds us in his judgment that sums charged by solicitors require an assessment at common law, even when the time limits for a client to challenge the fees under the Solicitors Act 1974 have expired. Generally, as in Baker Botts, fees will be referred to a Costs Judge for assessment of their reasonableness.
This is a significant point of note, in my experience. Claimant solicitors should be wary of the increased complexity of an assessment of reasonableness over standard debt claims, and should be prepared for that assessment to be carried out separately from other triable issues. Litigators would be wise to seek appropriate evidence in support of the reasonableness of the fees claimed at an early stage, including the relevant retainer(s), client care letter(s) and bills, if they have not already been relied upon. Equally, Defendants should fully plead issues with respect to reasonableness, among other things, within their defence, even when the fees are not subject to assessment under the Solicitors Act.
In Baker Botts, the Court granted permission for the Defendants to amend their Defence to incorporate points of dispute, with respect to the reasonableness of the fees claimed. Indeed, the Court levied criticism at the lack of particularity within the Defence. This highlights the importance of thorough (and CPR-compliant) pleadings in costs disputes, even beyond detailed assessment proceedings. There is a growing trend, especially in detailed assessment proceedings, for pleadings to be struck out or issues to be dismissed.[2] The thrust of many recent decisions is that the pleadings in question are non-compliant or lack particularity. Parties to proceedings in which a solicitor seeks to recover their fees would, even outside of detailed assessment proceedings, do well to ensure that their pleadings are carefully drafted. This, naturally, avoids the likely penalties that come with applications to amend the pleadings later.
Professional Liability
Furthermore, C alleged that the Defendants in Baker Botts had used a Part 20 claim as a tactic to stall litigation. The issue surrounded EHC’s allegation of professional liability with respect to C’s services.
It is common for defendants in claims for unpaid solicitors’ fees to make complaints about service or to bring a counterclaim for professional negligence. Many attempt to set off any consequent awards against the fees claimed. Baker Botts serves as a helpful reminder to litigators that claims for unpaid solicitors’ fees are often more complex than they may initially seem. Claimants ought to be aware, prior to litigation, of the potential for professional negligence counterclaims against them. Many lower-value claims may become disproportionately costly to pursue, with no easy means of escape, if professional negligence is alleged.
Security For Costs
Finally. while a substantial issue in Baker Botts surrounded C’s application for security for costs under CPR 25.27, that concept is best reserved for a later publication. For completeness, however, the Court held that EHC was a resident out of the jurisdiction and that there was “reason to believe” that EHC could not pay Baker Botts’ costs if ordered to do so in accordance with CPR 25.27(b)(i) and (ii). The Court noted: that ECH appeared to be unable to meet its liabilities as they became due; EHC’s historical defaults and financial fragility; a lack of substantive evidence supporting financial improvement; that EHC had likely overstated cashflow projections and, that the “working capital facility” with EHC’s lenders would expire at the end of September 2025 and its effect was unclear (among other things). Security for costs was assessed on a broad-brush basis, with potential costs being estimated at approximately £2M and 75% those costs being awarded.
Conclusion
In this short article, I have sought to remind litigators of some of the pitfalls that are commonly seen in litigation for the recovery of solicitors’ fees. These include the importance of carefully drafted pleadings, the tactical advantages of applications for summary judgment, and the complexity that is inherent to common law assessment and counterclaims in professional negligence. Baker Botts is a helpful and high-profile reminder of each of those concepts.
A copy of the full judgment can be found here >>>.
[1] Turner v Palomo [2000] 1 WLR 37
[2] See e.g. Ward v Rai [2025] EWHC 1681 (KB) (03 July 2025); Ainsworth v Stewarts Law LLP [2020] EWCA Civ 178; Wazen v Khan [2024] EWHC 1083 (SCCO); St Francis Group 1 Ltd & Ors v Kelly & Anor [2025] EWHC 125 (SCCO).
Whilst every effort has been taken to ensure that the law in this article is correct, it is intended to give a general overview of the law for educational and/or informational purposes. It is not intended to be a substitute for specific legal advice and should not be relied upon for this purpose.
This article represents the opinion of the author and does not necessarily reflect the view of any other member of St Philips Chambers.
