Court Of Appeal Rules That Clients Cannot Seek Disclosure Of Secret Commissions As Part Of An Assessment Of Their Solicitors’ Bill

The Court of Appeal has handed down judgment in Turner v Coupland Cavendish Limited[2026] EWCA Civ 1204 which holds that a client cannot, in the course of an assessment of their solicitors’ bill under section 70 of the Solicitors Act 1974, seek disclosure of any secret commissions which may have been earned by the solicitors in connection with their retainer. In this case, the client wished to know whether the solicitor had received a secret commission from their ATE insurer.

Whilst secret commissions may be a rare occurrence, the Court of Appeal noted that there does not appear to be any easy or costs-effective means for a solicitor’s client to seek disclosure, notwithstanding that, as a fiduciary for their client, they will usually be required to disclose to their client and account for any such commissions.

BACKGROUND

The retainer and the bill

In August 2019, Mr Turner instructed Gowing Law under a conditional fee agreement to represent him in a personal injury claim arising from a road traffic accident. The claim settled in October 2020, with Mr Turner recovering damages of £3,000 alongside a costs award of about £2,100.

In March 2022, the solicitors delivered their statutory bill to Mr Turner. Their profit costs came to £7,944 inclusive of VAT, more than twice the damages Mr Turner had received, and almost four times the costs recovered under the settlement. The success fee additionally stood at £750, capped at 25% of the damages recovered. 

Mr Turner exercised his right to challenge the bill, issuing proceedings under CPR 67.3 for a detailed assessment pursuant to section 70 of the Solicitors Act 1974: a process known as a solicitor and own client assessment (SOCA).

The ATE commission question

ATE insurance protects claimants from exposure to adverse costs in the event their claim fails and is routinely arranged in personal injury matters. 

It is well established that a solicitor is obliged to disclose to their client any commission or other financial benefit received from an ATE insurer (Tankard v John Fredericks Plastics Ltd [2008] EWCA Civ 1375). However, Mr Turner became concerned that Gowing may have received such a commission without disclosure. Therefore, in the course of the assessment, his new solicitors served a Request for Further Information under CPR Part 18, asking whether Gowing had received any direct payment by way of commission, discount, rebate, referral or marketing fee from the ATE insurer or any intermediary. Gowing refused to answer.

The Costs Judge

The claimant contended that, because the ATE premium appeared as a debit entry in Gowing’s cash account (which shows the money received by the solicitor to the credit of the client and sums paid out of that money on behalf of the client (CPR 46.10)), any undisclosed commission was relevant to the court's obligation to determine the result of that account, as part of the SOCA. The Costs Judge disagreed, refusing to order Gowing’s response on the basis that, among other reasons, the asserted dispute was, in substance, a means of probing the circumstances surrounding the ATE policy, rather than resolving any genuine dispute about the costs entries themselves. 

Drawing on his earlier decision in Brown v JMW Solicitors LLP [2022] EWHC 2848 (SCCO), he concluded that, in the absence of any evidence that a commission had been paid, the claimant was not entitled to wide-ranging access to the solicitors' records.

The High Court appeal 

Mr Turner subsequently appealed to the High Court which reversed the Costs Judge's decision. Sweeting J held that the threshold for a Part 18 request required nothing more than that the information sought related to a matter in dispute in the proceedings, and that it was wrong to equate that threshold with the more stringent requirements for pre-action or specific disclosure. He held that a client could not be required to prove something lying exclusively within the other party's knowledge and that it was for the solicitor to satisfy the court as to the accuracy of the cash account, not for the client to disprove it.

COURT OF APPEAL DECISION

The scope of a SOCA

The Court of Appeal, in a judgment delivered by Lady Justice Andrews (with Lord Justice Lewison and Lord Justice Phillips agreeing), allowed Gowing’s appeal. 

The central question was whether a dispute about the cash account, and in particular, whether the solicitors had received a secret commission on the ATE premium, could constitute a "matter in dispute in the proceedings" for the purposes of CPR Part 18.

The court held that a SOCA under section 70 of the 1974 Act is concerned solely with assessing the solicitor's bill and determining what is due in respect of it. As Lord Hamblen JSC had explained in Menzies v Oakwood Solicitors Ltd [2024] UKSC 14, section 70 focuses only on whether costs have been reasonably incurred and are reasonable in amount. 

While the ATE premium is paid on behalf of the client to the insurer, it is not a solicitor's disbursement and cannot therefore appear in the solicitor's bill of costs. It features instead on the solicitor's cash account. The cash account is entirely separate from the bill and its only function within a SOCA is to provide the arithmetic needed for the costs judge to certify the balance due in respect of the assessed bill. It is therefore not, the court held, a vehicle for investigating potential breaches of fiduciary duty or secret commissions.

Part 18 and the "back door" problem

While the court agreed with the High Court that the sole threshold condition for a Part 18 request is that the information must relate to a matter in dispute in the proceedings, it held that this condition was not met. There was no dispute about the accuracy of any figure actually appearing in the cash account; the concern was that items for which the solicitors would be liable to account were not included. The request therefore was, in substance, an application for disclosure dressed up as a request for further information.

The court drew a direct parallel with the approach taken in Edwards and others v Slater and Gordon UK Ltd [2022] EWHC 1091 (QB), where Ritchie J had accepted that a dispute about the amount of the ATE premium could not be introduced "by the back door" via an alleged dispute about the cash account.

Therefore, Lady Justice Andrews was unequivocal in finding that a:

“dispute as to whether the solicitor received a secret commission is not, and never could be, a dispute in the proceedings."

The outcome

The court held that the Costs Judge had no jurisdiction to compel answers to the Part 18 Request, that Sweeting J had been wrong to hold otherwise, and that the appeal should be allowed. 

Therefore, as matters stand, a client who suspects that their former solicitor received a secret commission on an ATE policy cannot compel disclosure through the mechanism of a SOCA. 

COMMENT

Lady Justice Andrews was candid about the practical consequences of the ruling. 

Although she recognised the existence of a fiduciary duty and described the solicitors' refusal to answer questions about commission payments as "unattractive" – and perhaps “unwise” if they had not received a secret commission – she concluded that the available remedies, namely commencing separate proceedings for an account, or making a complaint to the Legal Ombudsman, were the appropriate avenues for a client to pursue. 

Importantly, however, she acknowledged that these options were often inadequate in practice because the costs involved could be wholly disproportionate to the sums at stake. As she observed:

"...there appears to be no easy and cost-effective means of countering such recalcitrance, particularly given that the amounts of any recoverable commission are likely to be much lower than the costs of starting proceedings for an account."

She noted that this was a point which "others who are in a position to make changes to the rules or to the law may wish to consider."