This blog has been written by Ellis Tubb, Junior Legal Drafter at 8PP. Ellis recently graduated from our Training Academy, and this is one of her first published pieces for 8PP – we’re delighted to showcase her insight on the role of Pamplin in Election Applications.
The case in brief
The London Borough of Camden Council and Preston City Council presented a winding-up petition against Saint Benedict’s Land Trust Limited (the Appellant). The Appellant contested the petition, but His Honour Judge Halliwell determined that the Appellant was indebted. A third party later made a payment to satisfy the debt, which was transferred to the Respondents’ solicitors.
The Respondents considered the payment suspicious and returned the funds, despite the National Crime Agency declining to investigate further. Judge Halliwell ultimately dismissed the petition but ordered the Appellant to pay the Respondents’ costs (“The Halliwell Order”).
The Appellant then challenged whether the Respondents were liable to pay their own solicitors’ costs as part of the Halliwell Order. This led to an Election Application under CPR 47 PD 13.3, seeking disclosure of the Respondents’ retainers to determine costs liability. District Judge Bartley refused the application, and the Appellant appealed.
The key legal issue
The issue on appeal was whether the District Judge had erred in refusing the Election Application, and specifically:
- Can respondents be required to elect whether to disclose conditional fee agreements (CCFAs) in detailed assessment proceedings?
- What threshold must be met before such disclosure is ordered?
The parties’ arguments
For the Appellant:
- They were entitled to disclosure of the retainers to establish validity
- The Bill of Costs omitted key details such as the date of the CFA and agreed hourly rates
- Without this information, they could not be satisfied there was no breach of the indemnity principle.
For the Respondents:
- The Bill of Costs set out the hourly rates claimed in accordance with the retainers
- The bill did not exceed the amounts recoverable from the clients
- No breach of the indemnity principle was shown
- The paying party had not demonstrated a genuine dispute requiring the court to go behind the certification of the bill.
The Judgment
Mr Justice Edwin Johnson allowed the appeal. He held that District Judge Bartley had asked himself the wrong question, and had failed to apply the proper test from Pamplin v Express Newspapers Ltd [1985] 1 WLR 689.
Pamplin denotes that before a receiving party can be put to its election in detailed assessment proceedings, the paying party must raise a factual issue that is “real and relevant” and not a sham or fanciful dispute.
On the facts, the Appellant had crossed this relatively low threshold. As such, the Respondents were required to elect either to:
- Disclose the CCFAs in order to rely on them to prove their liability for costs; or
- Decline disclosure and instead rely on alternative evidence to prove liability.
The Election Application was therefore allowed.
Why this decision matters
This judgment reinforces the continuing importance of the Pamplin test in costs assessments under CPR 47 PD 13.13. The court confirmed that the threshold for requiring disclosure of retainers is a relatively low one – paying parties only need to demonstrate a “real and relevant” factual issue, rather than something speculative or fanciful.
For practitioners, this means:
- Paying parties have a clear route to challenge costs where genuine doubt exists over the terms of a CFA/CCFA
- Receiving parties should ensure their bills of costs are drafted with clarity, particularly around the basis of retainers, to minimise scope for such challenges
- Respondents must be prepared to elect between disclosure of the retainer or reliance on alternative evidence – failure to do so could cause delay, additional costs, or strategic disadvantage
- Wider relevance: although the decision does not create new precedent, it reaffirms the practical role of the Pamplin test, and is likely to be relied upon in future disputes over solicitor retainers in detailed assessment proceedings.
In short, the case serves as a reminder that where a genuine issue is raised, the court will require parties to address it directly, to avoid unnecessary delay and escalating costs.
8PP’s Housing Disrepair Team
This appeal judgment reinstates the importance of the Pamplin test under CPR 47 PD 13.13.
If you are involved in a costs dispute and need advice, assistance with the drafting of documents, or representation in court, please contact the team at 8PP at clerks@8pp.co.uk or call 0151 245 9292.
