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Case Analysis: Kenig v Thomson Snell & Passmore LLP


On 18 January 2024, the Court of Appeal handed down its judgment in Kenig v Thomson Snell & Passmore LLP [2024] EWCA Civ 15 (‘Kenig’). This judgment involved an examination of the distinctions between applications brought by parties for an assessment of solicitors’ costs pursuant to sections 71(1) and 71(3) of the Solicitors Act 1974 (“the 1974 Act”) and the extent of any such assessment.

This analysis will examine the legal nuances that the Court navigated in determining the applicability of these sections. It will analyse the Court’s interpretation of the fiduciary duties owed to beneficiaries in the context of estate administration, and how these intersect with the legal framework for assessing solicitors’ fees. Further, while the Court’s discussion on CPR r46.9, regarding the executor’s approval of costs, appeared in the judgment as obiter dicta, this piece will examine the potential implications of those reflections.

Case Overview

The Respondent in the appeal, Mr Kenig, and his sister were beneficiaries of their mother’s will, with the Appellant firm solicitors ('the Solicitors') retained by the executor to administer the estate. Initially, the Solicitors estimated their fees to be between £10,000.00 and £15,000.00 plus VAT and expenses. However, the final charges escalated to £54,410.99 plus VAT and expenses, significantly exceeding the original estimate. The Solicitors issued a series of invoices between October 2019 and August 2021 and subsequently transferred sums from the estate to cover these costs.

Mr Kenig sought to challenge these fees under section 71(3) of the 1974 Act, contending that he was a “person interested” in the estate from which the executor was entitled to pay the bill. The Solicitors opposed, arguing the application's fruitlessness based on principles set out in Tim Martin Interiors Ltd v Akin Gump LLP [2011] EWCA Civ 1574 (“Tim Martin”).

On 01 February 2023, Costs Judge Brown gave judgment in the first instance at the High Court. He concluded that the restrictive principles established in Tim Martin were not applicable to an assessment under section 71(3). Instead, he held that the case of In re Brown [1867] LR 4 Eq 464, which recognised the distinct interests and rights of beneficiaries in estate administration was binding for this context, thus, recognising the broader rights and protective measures due to beneficiaries under section 71(3). In this light, Costs Judge Brown held that there was, indeed, a realistic prospect that material deductions might be made from the Solicitors’ bill, and he exercised his discretion in favour of ordering an assessment under section 71(3).

The Court of Appeal unanimously upheld Costs Judge Brown’s decision. The Court, whose leading judgment was given by Lord Justice Stuart-Smith, affirmed the distinction between applications under sections 71(1) and 71(3). It concluded that the broader rights and interests of beneficiaries under section 71(3), as highlighted in In re Brown, were indeed applicable and necessitated a broader and less restrictive assessment approach from that under section 71(1), which was more contractually focused as exemplified in Tim Martin.

Analysis of Fiduciary Duties and Section 71(3)

The Court of Appeal’s judgment in Kenig sheds light on the fiduciary duties owed to third party beneficiaries by trustees or executors in the context of applications brought under section 71(3).

At [13] Stuart-Smith LJ stated as follows:

the party chargeable under section 71(1) owes no particular duty to the third party applicant other than anything imposed by their contractual arrangements. The third party's interests do not need particular protection: the assessment can therefore be conducted as one affecting the interests of the solicitor and the person chargeable i.e. a normal solicitor and client assessment. By contrast, the party chargeable in an application under section 71(3), quite apart from being entitled to pay the solicitor's charges out of trusts or estate property, owes fiduciary obligations to the third party beneficiaries, as will usually be known (at least in general terms) by the solicitor. The interest of the third party beneficiary under section 71(3) is therefore wider than the interest of the third party applicant under section 71(1)

[Emphasis added]

As can be observed, the Judge makes a clear distinction between the obligations owed under section 71(1) and section 71(3). Under the former, the relationship between the party chargeable (typically the solicitor’s direct client) and the third-party applicant is governed primarily by contractual terms. In this scenario, the third-party’s interests are not specially protected beyond the remit of the contractual agreement, and the assessment of fees is conducted as a standard solicitor and client assessment.

Conversely, under section 71(3), the party chargeable (usually the executor or trustee of an estate) owes fiduciary duties to third-party beneficiaries. This fiduciary responsibility is broader and more nuanced, for it encompasses a duty of care and a requirement that the fiduciary acts with single-minded loyalty and good faith towards the beneficiary. Thus, the executor or trustee is not only authorised to pay the solicitor’s charges from the estate, but they must also consider the wider interests of the beneficiaries in their decisions.

Further, at [47] Stuart-Smith LJ stated:  

“ii) When an application under section 71(3) is made by the executor or the beneficiary for an assessment it is the estate's liability for costs with which the court is ultimately concerned. When retaining solicitors and incurring costs, the executor is assumed to be acting on behalf of the estate and able to pass all costs in the bill to the estate. The ultimate paying party for the purposes of the assessment is the estate, in effect the beneficiaries. …

In the case of a section 71(3) application the executor owes fiduciary duties to the beneficiaries.”

[Emphasis added]

The Court highlights here that the executor – when retaining solicitors and incurring costs – is assumed to be acting on behalf of the estate, and further, that ultimately, the paying party for the purposes of assessment is in effect the beneficiaries. To that end, in the context of section 71(3) applications, the executor’s role transcends the mere payment of legal costs. They are not simply managing the estate’s financial transactions but are, indeed, acting as fiduciaries with a duty to prioritise the beneficiaries' interests.

Ongoing Impact

The Court’s obiter comments in Kenig from [56] to [58] provide significant insights into the ongoing impact of the decision regarding an executor’s approval of fees (so as to bring into play the presumptions under CPR r46.9) and the subsequent interplay with section 71(3) assessments.

At [56] Stuart-Smith LJ stated as follows:

Second, there is an issue (which we are not able to resolve) about whether the executor approved the bills (in the sense of providing fully informed consent and approval) so as to bring into play the presumptions under CPR 46.9. The question was raised before us what the effect on a section 71(3) assessment would be if it were to be held that the executor had approved the bills. For the Solicitors it was submitted that the effect of such approval would preclude any challenge by the beneficiary. For Mr Kenig, while accepting that approval by the executor may be a material factor, it was submitted that there should be no hard and fast rule because what mattered most was the legitimate protection of the beneficiary's separate interest.”

[Emphasis added]

Thus, while the Solicitors argued that the effect of the executor’s approval of the bill was such that it would preclude any future challenge by the beneficiaries, Mr Kenig argued that while such acceptance may be a material factor, there should be no “hard and fast rule” as the most important consideration was the “legitimate protection” of the beneficiary’s interest.

At [57] the Judge set out his reasoning for accepting Mr Kenig’s submissions as follows:

“…I accept that the ultimate interest to be protected on an assessment under section 71(3) is that of the estate and/or the beneficiaries.

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.

[Emphasis added]

At [58] he further stated as follows:

“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.

[Emphasis added]

This statement seems to suggest that while it agreed with Mr Kenig’s stance on not having a rigid rule when regarding the effect of an executor approving a solicitors’ bill in this context, the Court simultaneously acknowledges the significant weight that an executor's fully informed consent could carry.

This apparent contradiction highlights the nuanced and complex nature of legal assessments under section 71(3). On the one hand, the Court recognises the importance of protecting beneficiaries' interests, advocating for a broader enquiry under section 71(3) that takes into account the fiduciary duties owed by executors and trustees, noting in particular the lack of risk carried by the executor when paying solicitors’ fees given the same will simply be paid out of the estate. On the other hand, the Court acknowledged that an executor's informed consent, if proven to be given with full knowledge and understanding of the implications, could be pivotal in deciding the outcome of fee disputes.

This raises questions regarding what constitutes “fully informed consent” and further, if such consent is provided by an executor who has approved a final bill that far exceeds an original estimate, under what circumstances will such approval be considered to be “determinative”?

In the Kenig case, for instance, the administration of the estate was said to look relatively uncomplicated given it consisted of some stocks and shares, cash, a freehold property and two timeshares. If the administration of the estate was, however, more complicated, and the fees were subject to a similar level of inflation i.e. 250 to 450 percent more than the original estimate, would the Court take a different approach when considering the effect of the executor’s approval on the possibility and scope of any subsequent assessment?

Moreover, when assessing the concept of “fully informed consent” what level of rationale and reasoning will the Court look for in assessing whether or not the executor was adequately informed about (potentially) unforeseen complications that led to the exceedance of initial estimates? The nuances presented by this judgment leave much to be discussed and debated by lawyers for years to come.

The Kenig judgment will significantly influence the evolving landscape of estate administration, particularly in interpreting fiduciary duties and legal fee management. This case marks a shift towards greater scrutiny of executors' and trustees' responsibilities, aligning their actions more closely with the interests of beneficiaries. It could signal an era of heightened standards and expectations in estate management, especially concerning financial and legal decisions.

This decision contributes to a growing demand for transparency and accountability in legal practice, particularly regarding solicitors' fees when managing estates. It highlights the need for solicitors to adopt clearer billing practices and maintain open communication about costs with executors. The ruling also accentuates the evolving role of executors and trustees, who must exercise increased diligence when administering estates.


The Kenig judgment impacts upon the dynamics of estate administration and clarifies the fiduciary responsibilities of executors and trustees to beneficiaries of estates. By drawing a clear line between the obligations under sections 71(1) and 71(3) of the 1974 Act, the Court of Appeal has affirmed the paramount importance of protecting beneficiaries' interests. The nuanced discussions, especially around an executor’s approval of fees and the interplay with CPR r46.9, signal a potential shift towards more rigorous scrutiny in the assessment of solicitors' fees, supporting greater transparency and accountability in the legal industry.

This analysis was composed by 25 Canada Square Chambers Pupil Abdul Qadim.

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