Tina Frances Tucker & Anor v Jenna Louise Howe

Costs Judge Leonard:

1. I have been undertaking an assessment, under section 71(3) of the Solicitors Act 1974 , of the costs of Mr Mark Keeley, the former administrator of the estate of Mr Steven Howe, deceased. Mr Keeley is a solicitor and a partner in Freeths LLP.

2. Most orders for assessment under the 1974 Act are made under section 70 , which provides for the assessment of a solicitor’s bill by the person contractually responsible for paying it (usually the solicitor’s client).

3. Section 71 confers upon the court the power to order assessment of a solicitor’s bill on the application of certain other interested parties. In so far as material it reads: “71. —Assessment on application of third parties. (1) Where a person other than the party chargeable with the bill for the purposes of section 70 has paid, or is or was liable to pay, a bill either to the solicitor or to the party chargeable with the bill, that person, or his executors, administrators or assignees may apply to the High Court for an order for the assessment of the bill as if he were the party chargeable with it, and the court may make the same order (if any) as it might have made if the application had been made by the party chargeable with the bill… (3) Where a trustee, executor or administrator has become liable to pay a bill of a solicitor, then, on the application of any person interested in any property out of which the trustee, executor or administrator has paid, or is entitled to pay, the bill, the court may order— (a) that the bill be assessed on such terms, if any, as it thinks fit; and (b) that such payments, in respect of the amount found to be due to or by the solicitor and in respect of the costs of the assessment, be made to or by the applicant, to or by the solicitor, or to or by the executor, administrator or trustee, as it thinks fit.”

4. There is a material difference (which has a bearing on one of the issues addressed by this judgment) between an assessment under section 71(1) of the 1974 Act , and an assessment under section 71(3) .

5. That difference was explained at paragraphs 14 and 15 of the judgment of Stewart-Smith LJ in Kenig v Thomson Snell & Passmore LLP [2024] EWCA Civ 15 :

14. … Under s 71(1) the court is limited to making "the same order (if any) as it might have made if the application had been made by the party chargeable with the bill". In other words, the graduated provisions of s 70 must be read across because the third party must make their application for an assessment as if they were the party chargeable and the court may (only) make the same order (if any) as it might have made if the application had in fact been made by the party chargeable with the bill. By contrast, where the application is made under s 71(3) , there is no such restriction. The court may order assessment "on such terms, if any, as it thinks fit" and in considering the application is merely required to "have regard" to the provisions of s 70 "so far as they are capable of being applied to an application under that subsection" and to the nature and extent of the interest of the applicant: see sub section 71(4) (a) and (b).

15. Giving these provisions of s 71 their normal and natural meaning, it is clear that the scheme of the section as a whole is that applications by beneficiaries under sub section 71(3) may give rise to issues that differ from and are more extensive than the issues that arise on an application under sub section 71(1) . That is because, as expressly recognised in sub section 71(4) (b), the beneficiary may have independent interests that should be taken into account when deciding whether to order an assessment and, by extension, when an assessment is undertaken…”

6. That distinction means, for example, that on an assessment under section 71(1) , it will be difficult (if not impossible) for a third party to challenge any element of costs that has been agreed between the solicitor and the client, as the party chargeable with the bill.

7. That is not necessarily the case on an assessment under section 71(3) , for reasons given by Stewart-Smith LJ at paragraph 57 and 58 of his judgment (referring to In re Brown (1867) LR 4 Eq 464 and Hazard v Lane (1817) 3 Mer 285): “57. … First, although the starting point is that an assessment under s 71(3) is an assessment as between solicitor and client, I accept that the ultimate interest to be protected on an assessment under s 71(3) is that of the estate and/or the beneficiaries. Second, I consider it to be material that s 71(3) (b) makes express provision permitting an order that payments be made "to or by the applicant, to or by the solicitor, or to or by the executor, administrator or trustee", which underscores the broader nature of the enquiry under s 71(3) when compared with an assessment under s 70 or s 71(1) . Third, it seems appropriate that separate consideration should be given to the position of the beneficiary and the estate in circumstances where the executor/trustee carries no risk because of their ability to pay the solicitor out of the trust property. Fourth, the decisions in In re Brown and Hazard v Lane both contemplated and allowed the beneficiary to challenge the bill even though an executor had approved it.

58. That said, I would accept that the fact of fully informed consent by the executor (if proved) is likely to be a major consideration, which in many cases may prove to be determinative.” The History of these Proceedings

8. The order for this section 71(3) assessment was made in probate litigation, which is why this judgment bears the heading of those proceedings. The litigation concerned a challenge to the will of Mr Howe by the Defendant, Ms Jenna Howe.

9. Mr Howe died on 27 March 2020, leaving a will dated 4 July 2017. The Defendant is Mr Howe’s daughter but was not a beneficiary of his will. The Defendant’s case, as I understand it, was that Mr Howe had died intestate.

10. The Claimants were two of four equal residuary beneficiaries of the will (the other two beneficiaries being Ross and Jamie Tucker, the adult sons of the first Claimant) and had been appointed as executrices. In order to propound the will it was necessary for them to initiate the probate proceedings against the Defendant.

11. On 9 October 2020, the Claimants, who were unable to administer the estate until the probate litigation had been resolved, made an application in those proceedings for the appointment, as administrator pending suit, of Mr Mark Keeley, a solicitor and a partner in Freeths LLP.

12. On 16 October 2020, HHJ Pearce (sitting as a judge of the High Court) made an order appointing Mr Keeley. His order authorised Mr Keeley to charge reasonable professional fees in respect of the administration of the estate and provided for the appointment to end upon the final order of the Court in the probate proceedings. In his capacity as administrator, Mr Keeley instructed Freeths to undertake the requisite legal work.

13. The Claimants subsequently took issue with both Mr Keeley’s costs and his performance of his duties. Much of the relevant correspondence emanated from a Mr Leo Valls, referred to by the first Claimant in correspondence on 21 September 2021 in this way: “Leo Valls is our family legal consultant… In all future correspondence where you require a reply from me, you are to address it to Leo and Leo will reply to you on my and my family's behalf…”

14. Subsequently Freeths wrote to Mr Valls “in your capacity as representative of Rosina Howe, Tina Tucker, Ross Tucker and Jamie Tucker (collectively ‘the Will Beneficiaries’)…”

15. Mr Valls took up the challenge to the Administrator’s costs. In that respect Freeths continued to address him, and he characterised himself, as the representative of all the beneficiaries of Mr Howe’s will. The following extracts from an email from Mr Valls to Freeths dated 8 March 2022 gives an indication of the content and tone of much of his correspondence: “The first step therefore, is to settle the matter of the amount of your costs and for which to occur we require the detailed assessment process to commence. That you seek to suggest otherwise… is, in my opinion, yet another example of Freeths bullying, bombastic and frankly disingenuous behaviour that has been prevalent in our dealings with you. Because of this, and the resultant concerns I have and had in any event as to the honesty or accuracy of Freeths in respect of anything, let alone the costs you claim, I can see no scope for a negotiated agreement of costs outside of a formal Court approved process where I know we can rely on the Court to act diligently, honestly and with good faith and therefore, and in any event, we now wish, require and demand to have the matter of costs dealt with by way of detailed assessment. This way we can be assured that the matter of costs will be dealt with fairly and honestly. Accordingly, and with the following in mind, you are invited to issue an N252 Notice of Commencement of costs so that we may raise our points of dispute formally and commence the detailed assessment procedure… Faithfully, Leo Valls As for and on behalf of Rosina Howe, Tina Tucker… Ross Tucker and Jamie Tucker”

16. It will be evident from this correspondence that Mr Valls, on behalf of the beneficiaries of Mr Howe’s will, sought an assessment of Freeth’s costs but did not know how to go about it. Normally, an application for an order for assessment under sections 70 and 71 of the 1974 Act is, in accordance with CPR 67.3(2), made under CPR Part 8 by the person seeking an assessment.

17. Subsequently the Claimant instructed JMW Solicitors LLP (“JMW”), who indicated that their clients had a right to seek an assessment of Freeths’ costs under section 71(3) . Freeths acknowledged that JMW’s clients, as beneficiaries of Mr Howe’s estate, had that right.

18. In the meantime, in December 2021, the Claimants and the Defendant had compromised the probate claim. The terms of their agreement were embodied in a consent order made by HHJ Halliwell (sitting as a High Court Judge) on 22 December 2021.

19. Mr Keeley’s appointment as administrator was automatically terminated by that order, but some disputed matters of administration remained outstanding. An agreement to resolve those matters was embodied in a consent order made on 21 February 2023 by District Judge Woodward.

20. DJ Woodward’s order provided for a sum of money to be raised, some of which was to be paid to Mr Keeley and some of which, referred to as “the Balance”, was to be held to the joint order of the parties pending the assessment of Mr Keeley’s costs. Provisions for assessment, and for payment of the assessed costs, were set out at paragraphs 4-9 of the order: “4. The Administrator’s Costs (including for the avoidance of doubt the Administrator’s remuneration) will be determined by way of a third-party detailed assessment pursuant to section 71(3) of the Solicitors Act 1974 if not agreed, in accordance with the following timetable.

5. Within 42 days of the date of this order, the Administrator will serve a bill of costs on the Claimants. Such bill will include details of the Administrator’s remuneration (as well as details of his costs and expenses), including the Administrator’s Costs of the Administrator’s Application.

6. Within 42 days of the bill of costs being served on them or in the event any extensions are agreed or ordered by the court, the expiry of the revised permitted time, the Claimants will serve any points of dispute on the Administrator. If the Claimants fail to do so, the Claimants’ Conveyancing Solicitors will transfer the Balance to Freeths’ Bank Account and the Administrator will be at liberty to apply the Balance in discharge of his outstanding Administrator’s Costs.

7. Within 28 days of the points of dispute being served on him, the Administrator will serve his points of response on the Claimants.

8. From the date of service of the points of dispute, a period of 28 days will be set aside to allow the Claimants and the Administrator to try to reach an agreement in respect of the Administrator’s Costs (“the Negotiation Period”) and during that period the assessment shall be stayed.

9. Within 2 working days of the end of the Negotiation Period (or any extension to it agreed in writing) if no agreement is reached, the Administrator will issue his bill of costs for detailed assessment in the Senior Courts Costs Office.

10. The Administrator’s Costs, agreed or determined as set out above, will be paid out of the Balance. Subject thereto, any remaining sum held by the Claimants’ Conveyancing Solicitors will be returned to the Claimants. ”

21. That is the assessment which this court has undertaken.

22. The bill to be assessed was drawn at £147,436.33. It is divided into 12 parts. Parts 1-6 record the work represented by six invoices rendered by Freeths to Mr Keeley for non-contentious work under a contract of retainer dated 11 November 2020. Parts 7-9 record the work represented by three invoices rendered by Freeths to Mr Keeley for contentious work under a contract of retainer dated 22 October 2020. Part 10 represents Mr Keeley’s own professional time costs. Part 11 incorporates counsel’s fees for contentious work, and part 12 represents the costs of preparing the bill.

23. I would normally expect the assessment of a bill drawn at £147,436.33 to be completed within two days. This assessment (excluding the outstanding matters addressed in this judgment) took nine days of court time, between 2-4 April 2024, 27-29 August 2024 and 19-21 February 2025.

24. That was largely because the Claimants produced some 67 pages of Points of Dispute which not only accused Mr Keeley of failing to protect Mr Howe’s estate, but echoed Mr Valls’ belligerent approach in characterising a generally unremarkable body of costs as extraordinary in amount, the underlying theme being that Mr Keeley and Freeths had systematically overcharged.

25. By way of illustration, the Points of Dispute employed the words “staggering” or “staggeringly” some 54 times and the word “astonishing” 17 times. None of that hyperbolic prose was justified.

26. The assessment process was also prolonged by argument about the extent to which the Claimants, as beneficiaries of Mr Howe’s will, could rely upon the scope of an assessment under section 71(3) to raise challenges to Mr Keeley’s costs, so as for example to challenge the hourly rates agreed between Mr Keeley and Freeths.

27. A skeleton argument filed on behalf of the Claimants incorporated the following arguments: “In a s.71(3) detailed assessment, the party chargeable with the Bill i.e. the administrator in this case, has either no risk, or a diminished risk, as to their personal liability for payment, because they are able to pay the solicitor’s Bill out of the estate property… The interests of a third-party beneficiary pursuant to s.71(3) SA 1974 are wider than those of third parties covered by s.71(1) SA 1974. That is because, by contrast to s.71(1) SA 1974, an executor owes fiduciary obligations to the beneficiaries… The fully informed approval of the executor to the solicitor’s Bill does not preclude the beneficiary from challenging the solicitor’s Bill. That is because the ultimate interest to be protected on a s.71(3) SA 1974 detailed assessment is that of the estate and/or the beneficiaries…”

28. The outcome of the assessment was that (excluding interest) the bill was assessed at £129,686.76. That is just below 88% of the bill as drawn. I found nothing to justify the serious allegations that had been levelled at Mr Keeley and his firm on behalf of the Claimants.

29. Having found the Claimants’ conduct in relation to the assessment to have been unreasonable to a high degree, I ordered that the Claimants pay the costs of the assessment on the indemnity basis and I assessed the figure payable at £132,400 exclusive of VAT. I asked the parties to agree, if possible, the wording of a final order, but they were unable to reach agreement on two issues which have required another hearing.

30. The first was the extent to which Mr Keeley is entitled to be indemnified against VAT on his costs of the assessment. The second was whether Mr Howe’s estate, or the Claimants themselves, should bear the costs of the assessment process. As I have indicated, I had already made an order that the Claimants should do so. At least that was my intention, but until the order has been perfected it is open to the Claimants to argue that the estate should instead bear the costs. The Burden of Costs

31. This point has taken on particular significance because the estate of Mr Howe is insolvent, an Insolvency Administration Order having been made on 23 July 2025.

32. Professor Watson-Gandy, for the Claimants, argues that in a section 71(3) detailed assessment it is the interest of the estate that is paramount, and that the central consideration on detailed assessment is to protect the estate.

33. This submission was based on Kenig at paragraph 47(iii): in fact the reasoning referred to in that paragraph was that of Costs Judge Brown, and its emphasis, to my mind, is slightly different: “… Where a solicitor is instructed by an executor to administer an estate, the interest of the estate is … central to consideration of the reasonableness of the costs in a way that forms no part of the exercise undertaken by an assessment being conducted under section 71(1) …”

34. Professor Watson-Gandy submits that, reading the 21 February 2023 order as a whole, it is clear that DJ Woodward did not intend or envisage that any personal liability would be taken on by the executors of Mr Howe’s estate rather than being paid out of estate assets. Hence, for example, the provisions of paragraph 10.

35. The heading of the order (as do other documents produced for the assessment) describes the capacity in which the Claimants participate in the proceedings. They have been acting as executrices. That is in no way inconsistent with their acting on behalf of the interests of the beneficiaries and is entirely consistent with their fiduciary duty to the beneficiaries. If they had been more successful in the assessment, the benefit of their success would have been shared by all the beneficiaries.

36. Further, DJ Woodward’s order made no provision for the Claimant to have any personal liability for costs. If that were intended, the order would have said so and they would have been joined as parties under CPR 46(2) (which governs costs orders in favour of or against non-parties). It is not for this court to re-exercise DJ Woodward’s discretion in an assessment exercise which implements his order.

37. Mr Latham, for Mr Keeley, argues that on any sensible construction the Claimants, as beneficiaries, were the applicants requesting a detailed assessment under section 71(3) and so should themselves pay the costs of the detailed assessment process. He refers to the pre-assessment correspondence in which it was made clear that the Claimants were taking issue with Mr Keeley’s costs in the capacity as beneficiaries, and to their reliance upon their position as beneficiaries in order to support the challenges to Mr Keeley’s costs.

38. Mr Latham reminds me that the court retains an absolute discretion, under section 51 of the Senior Courts Act 1981 and section 71(3) (b) of the 1974 Act , as to who should pay the costs of this assessment. He also reminds me of my findings as to the conduct of the Claimants in the course of the detailed assessment proceedings. That was not the conduct of Mr Howe’s estate or of the beneficiaries as a whole.

39. In the light of that, Mr Latham argues, it is entirely appropriate for the court to order that the Claimants should be responsible for the costs of the detailed assessment in their capacity as beneficiaries. Conclusion on the Burden of Costs

40. I am unable to accept the proposition that this section 71(3) assessment has been initiated and pursued by the Claimants in their capacity as executrices. That is not only because they have made it entirely clear from the outset that they were acting in their capacity as beneficiaries (although that is relevant), or that they relied extensively upon their position as beneficiaries to broaden, as far as they could, the scope of their challenges to Mr Keeley’s costs (although that is equally relevant).

41. It is also because the statutory jurisdiction conferred by section 71(3) of the 1974 Act does not empower the court to make an order for assessment of a solicitor’s bill on the application of a trustee, executor or administrator. It empowers the court to make such an order on the application of any person interested in any property out of which the trustee, executor or administrator has paid, or is entitled to pay, the bill: in this case, the beneficiaries of Mr Howe’s will.

42. The normal process of application under CPR Part 8 was in this particular case bypassed by the provision, in the consent order of 21 February 2023, for a section 7(3) assessment. It remains the fact that the Claimants wanted a section 71(3) assessment, and they have vigorously (if unwisely) pursued a section 71(3) assessment. They did not do so in their capacity as executors. Nor could they, because section 71(3) does not allow for that.

43. I cannot accept that DJ Woodward’s order is inconsistent either with that conclusion, or with the proposition that the Claimants should be responsible for the costs of this detailed assessment. They are referred to in the heading of the order (and in the heading of this judgment, and in other documents such as Mr Howe’s bill of costs) as executrices, because that is the proper title of the proceedings in which the order for a section 71(3) assessment was made. It has no bearing upon the substance of the order. The question is not how the Claimants have been described in procedural documentation, but the capacity in which they pursued this assessment.

44. CPR 46.2 applies where the court is considering whether to exercise its power to make a costs order for or against a person who is not a party to the proceedings. It has no application where the court is not contemplating such an order, and it has no application in relation to any person who is already a party to the proceedings.

45. DJ Woodward’s order made no provision for the cost of the assessment because orders for assessment do not make such provision: the award and quantification of the costs of the assessment process is a matter for the assessing judge. There is no question of my re-exercising any discretion already exercised by DJ Woodward.

46. For those reasons, I am unable to accept Professor Watson-Gandy’s submissions. This was a section 71(3) application by beneficiaries, in their capacity as beneficiaries, and the costs of the exercise fall to be borne by them in their capacity as beneficiaries. It is not to be borne by Mr Howe’s estate.

47. Even if I am wrong about any of that, I entirely accept Mr Latham’s submissions upon the appropriate exercise of the court’s discretion.

48. I have already referred in this judgment to some of my reasons for ordering that the Claimants pay the costs of the assessment on the indemnity basis, and I do not need to restate them all here. I would however refer to the fact that it emerged, at the conclusion of the assessment, that the Claimants (without ever themselves making any attempt at negotiation) had rejected three attempts by Mr Keeley to settle the costs dispute upon receipt of a smaller sum than he was ultimately found to be due upon assessment.

49. Had they engaged with his attempts at settlement it would have been possible to avoid the necessity for the court to spend nine days reducing his costs by less than £18,000 inclusive of VAT.

50. In my view it would be unfair for the estate (and potentially, Mr Ross Tucker and Mr Jamie Tucker, who did not participate in the assessment) to bear any part of the burden of the unnecessary costs incurred through the Claimants’ actions. In all the circumstances, I am satisfied that it is fair for the Claimants to bear the costs of these detailed assessment proceedings, and I confirm the order I have already made to that effect. VAT

51. Professor Watson-Gandy submits that Mr Keeley and Freeths have failed to produce anything to support the claim for VAT on the costs of the assessment process.

52. Ordinarily, where solicitors act for themselves in contentious matters relating to their business, they are not entitled to an indemnity against VAT on any costs recovered from their opponents because their supply of services to themselves is not a taxable supply within the terms of Schedule 2 to the Finance act 1982 ( Ralph Arthur Archer v The Commissioners [1974] 1 VATTR 1 and D A Walker v The Commissioners [1976] VATTR 10.

53. In support of the proposition that there has been a self-supply in this case, Professor Watson-Gandy points out, for example, that Freeths’ bills for their services were addressed to Mr Keeley at Freeths, and that the estate accounts for Freeths’ name and business address.

54. Apart from the costs of the assessment, Professor Watson-Gandy suggests that this issue might affect those parts of the bill that postdate the termination of Mr Keeley’s appointment as administrator, as well as certain costs incurred by Freeths.

55. Mr Latham points out that the VAT issue came up in the course of the summary assessment of the costs of the assessment proceedings. It had not been raised by the Claimants in relation to Mr Keeley’s bill itself, and he submits that the paying party should not be permitted to raise new points after the assessment has concluded.

56. As for VAT on the costs of the detailed assessment, Mr Keeley proposes to adopt a neutral approach because neither he nor Freeths have anything to gain or to lose from the point: the only beneficiary from the recovery of VAT is HMRC. If the court concludes that VAT is payable on the costs of assessment, Mr Keeley will account to HMRC accordingly. If the costs of the assessment are found to be the costs of a self-supply, so that VAT is not chargeable, then Freeths will account to HMRC accordingly. They request that that if the court finds that VAT is not chargeable on the costs of the detailed assessment, that finding should be recorded in the recital to an order, which may persuade HMRC to agree.

57. Mr Latham reminds me however that Mr Keeley does have a personal liability to pay Freeths’ costs arising out of and occasioned by his instruction of them in his capacity as administrator of Mr Howe’s estate. Conclusions on VAT

58. Mr Latham is right to say that the Claimants did not, when they had the opportunity, take issue with the VAT element of any part of the bill itself. CPR 47.14(6) provides that only items specified in the points of dispute may be raised at the hearing, unless the court gives permission, and permission has neither been sought nor given. Nor have the Claimants attempted to file or serve the amended or supplementary document that is a prerequisite to varying their points of dispute.

59. I agree, for those reasons, that it would not be appropriate for me to allow any VAT point to be raised now as regards the bill itself, but in order to explain and put in context my conclusions on the costs of assessment, I do need to refer to it.

60. To my mind there could never have been any real issue about Mr Keeley’s right to recover VAT for all work done by Freeths on his behalf under his two contracts of retainer. Mr Keeley and Freeths LLP are separate entities and can enter into a contract of retainer for any services that Freeths agree to provide to Mr Keeley. VAT will be payable upon Freeths’ charges in the usual way.

61. Nor do I see why that should be affected to any extent by the termination of Mr Keeley’s appointment as administrator. That would not in itself have been any obstacle to Freeths acting for Mr Keeley.

62. In relation to parts 1-9 of Mr Keeley’s bill of costs, Freeths have produced copies of the relevant solicitor/client bills. Matters such as the address on those bills, or the use of their headed paper on documents such as the estate accounts, are not to the point.

63. Similarly the VAT element on counsel’s fees at part 11 of the bill is recoverable, as is the VAT at part 12 on the cost of bill preparation. All of this represents work undertaken on Mr Keeley’s behalf by professional advisers, to whom Mr Keeley has a liability to pay professional fees and the accompanying element of VAT.

64. Part 10 of the bill represents Mr Keeley’s own time charges. There is however no question of self-supply, because Mr Keeley’s services as administrator were supplied to the estate of Mr Howe. Freeths will bill the estate for Mr Keeley’s work, insofar as the attendant costs have been allowed on assessment, and VAT will of necessity be included in their bill.

65. As for the costs of assessment. Mr Keeley was, as the former administrator of Mr Howe’s estate, represented by counsel instructed by Freeths LLP. He was not representing himself. He has a liability to Freeths for the attendant costs, and they have an obligation to add VAT, as appropriate, to their fees and disbursements.

66. For those reasons, my conclusion is Mr Keeley is entitled to be indemnified against VAT upon his costs of assessment.