Personal Liability Under s.71(3) of the Solicitors Act 1974: Tucker v Howe Explained

A recent decision in Tucker & Anor v Howe [2026] EWHC 208 (SCCO) highlights an important risk in Solicitors Act assessments under s.71(3) of the Solicitors Act 1974: beneficiaries who pursue wider challenges may face personal liability for the costs of assessment. The case is a useful reminder that careful cost-benefit analysis remains essential before starting a Solicitors Act challenge.

Solicitors Act Assessments Under s.71(3): A Growing Area of Risk

Solicitors Act assessments have become increasingly complex and more prevalent following the decision in Kenig, which opened the door to more parties bringing wider assessments under s.71(3) of the Solicitors Act 1974. However, we are now starting to see how those wider assessments take shape in reality — and it may not be as beneficial as initially considered.

The decision in Tucker & Anor v Howe [2026] EWHC 208 (SCCO) is a clear example. While Kenig expanded the scope for third parties, particularly beneficiaries, to challenge solicitors’ costs to be paid from a fund in which they have an interest, Tucker v Howe shows that those broader rights of challenge can carry significant personal costs consequences.

The Background to Tucker & Anor v Howe [2026] EWHC 208 (SCCO)

The Executrices sought a s.71(3) assessment under the Solicitors Act 1974 of the costs of the former administrator of the estate of Steven Howe (deceased). The matter had been subject to ongoing probate litigation concerning a challenge to the will of the deceased. The Claimants were two of four equal residuary beneficiaries under the will and had also been appointed as executrices.

The Claimants were unable to administer the estate until the probate litigation had resolved and subsequently made an application for the appointment of Mr Mark Keeley, a solicitor and partner at Freeths LLP, as administrator. The Order appointing the Administrator provided for him to charge reasonable professional fees in respect of the administration of the estate.

The Claimants took issue with the costs incurred by the Administrator. An agreement was reached to resolve certain matters, and an Order was prepared and approved which provided for the Administrator’s costs to be “determined by way of a third-party detailed assessment pursuant to section 71(3) of the Solicitors Act 1974 if not agreed”.

The Solicitors Act Assessment: What Happened?

Costs Judge Leonard proceeded to carry out the assessment. The Bill of Costs totalled £147,436.33.

The detailed assessment took place over 9 days, largely due to the position adopted by the Claimants, including the service of Points of Dispute running to 67 pages. Numerous allegations were raised, and Costs Judge Leonard noted that significant elements of those allegations involved hyperbole which was unfounded and unjustified.

There were also numerous elements of the assessment where the Claimants sought to challenge matters which could only properly be explored because the assessment was proceeding under s.71(3) of the Solicitors Act 1974, including the hourly rates agreed between the Administrator and Freeths LLP.

The Bill of Costs was ultimately assessed at £129,686.76, which was just below 88% of the bill as drawn. Costs Judge Leonard found no evidence supporting the serious allegations made by the Claimants.

As a result, the one fifth rule was engaged, meaning the Claimants were liable for the Administrator’s costs of the assessment.

In addition, Costs Judge Leonard ordered that those costs be assessed on the indemnity basis, as a result of the Claimants’ conduct, which was found to be “unreasonable to a high degree”. The costs of assessment were themselves assessed at £132,400 exclusive of VAT.

However, the Claimants sought to avoid that liability by arguing that the costs should instead be borne by the estate, on the basis that they had been appointed as executrices.

The Costs Decision: Personal Liability Under s.71(3) of the Solicitors Act 1974

Costs Judge Leonard considered who should bear the burden of the costs. That issue had particular significance because the estate of Mr Howe was now insolvent.

The Court noted that there is a material difference between seeking an assessment under s.71(1) of the Solicitors Act 1974 and seeking an assessment under s.71(3).

Under s.71(1), the assessment is carried out as if the third party were bringing the application as though they were the party chargeable, and the Court is limited to making such an order as if they were the party chargeable. In practice, this means it is very difficult — “if not impossible”, per Costs Judge Leonard — for a third party to challenge any element of costs that has already been agreed between the solicitor and the client as the party chargeable with the bill.

By contrast, an assessment under s.71(3) of the Solicitors Act 1974, following the decision in Kenig, opens up the areas which a third party, including beneficiaries, can challenge where those costs are to be paid out of a fund in which they have an interest.

Costs Judge Leonard found that it was clear the Claimants were pursuing the assessment in their role as beneficiaries, not as executrices. The Claimants had also relied heavily on s.71(3) of the Solicitors Act 1974 to broaden their challenges as much as possible.

As such, Costs Judge Leonard could reach no conclusion other than that the Claimants had brought the assessment as beneficiaries in their own personal capacity. The Court therefore concluded that the Claimants were personally liable for the costs of the assessment and that those costs should not be borne by the estate.

Key Takeaways from Tucker v Howe [2026]

The decision in Kenig did open the door to third parties — particularly beneficiaries — to bring broader challenges to solicitors’ costs to be paid out of funds in which they have an interest.

However, Tucker v Howe shows that the same practical hurdles remain in place as in other solicitor-own client assessments, and that wider rights of challenge do not remove the underlying costs risks.

The key practical points are:

• Beneficiaries using s.71(3) of the Solicitors Act 1974 may be found to be acting in their own personal capacity.
• If so, they may face personal liability for the costs of assessment.
• The one fifth rule remains a significant risk.
• Because Solicitors Act assessments are conducted on the indemnity basis, the costs consequences can be substantial.
• The costs of the assessment can quickly outweigh any reduction achieved in the bill.

Why Cost-Benefit Analysis Matters Before a Solicitors Act Assessment

The one fifth rule, combined with a Solicitors Act assessment being conducted on the indemnity basis, means that accurate cost-benefit analysis is essential before proceeding with a Solicitors Act assessment.

This is because the costs of the assessment can quickly dwarf the reductions achieved, resulting in a net loss for the client.

For beneficiaries and practitioners considering a challenge under s.71(3) of the Solicitors Act 1974, Tucker v Howe is a timely reminder that broader rights of challenge may look attractive in principle, but can come at a significant financial cost in practice.

‍