Evans v Fletchers Solicitors: why failing to chase BTE cover can cost solicitors the success fee

When a client pays for legal expenses insurance as part of their home policy, and their solicitor never properly checks whether it applies, who should bear the cost? The Senior Courts Costs Office has answered that question with unusual clarity, disallowing the entirety of a success fee charged by Fletchers Solicitors Limited to a road traffic accident claimant who, it transpired, had been paying for BTE cover all along.

The facts in Peter Evans v Fletchers Solicitors Limited [2026] EWHC 1523 (SCCO) are not especially unusual, which is precisely what makes the judgement significant. Mr Evans had a personal injury claim arising from a 2017 accident. It settled in 2021 for £250,000. Fletchers rendered a bill of £61,615.13, of which £30,365.13 was a success fee capped at 25% of the relevant damages. Mr Evans, by then advised by JG Solicitors, challenged the bill under section 70 of the Solicitors Act 1974 and argued that, had his solicitors done their job on funding, none of that success fee would have been payable.

Senior Costs Judge Rowley agreed.

The case turns on four linked findings, each of which carries weight independently. First, the enquiries Fletchers made into BTE insurance were inadequate. The firm signed Mr Evans up to a CFA on 24 April 2017 knowing he had home insurance with Zurich, yet made no substantive enquiries of either Zurich or DAS (the legal expenses insurer operating under the policy) for more than two years. When it did eventually write to Zurich in 2019, the letter it received back was, in Rowley SCJ's words, "completely miscategorised" as a refusal to engage. Zurich had included a bold-print telephone number for further assistance; nobody called it. The judge was pointed in his assessment: the correspondence appeared designed to produce a negative response and thereby leave the existing CFA arrangement undisturbed.

Second, on the balance of probabilities, BTE cover was available. The plain wording of the Zurich home solutions policy covered personal injury claims. Fletchers' head of costs, Gary Ratcliffe, offered evidence from experience that family LEI policies typically exclude motor accidents, and pointed to a DAS FAQ answer suggesting the same. Rowley SCJ gave that evidence only modest weight: the FAQ could not be traced back to 2017, and DAS's own Mr Hazel conspicuously declined to say there was a blanket exclusion, maintaining instead that coverage would depend on the individual policy. That nuance, the judge found, could only mean that some policies did cover motor accidents.

Third, the £50,000 indemnity limit in the BTE policy did not defeat the claim. Fletchers argued the limit was insufficient for a case of this complexity, but the judge noted that the ATE policy actually taken out, with a £100,000 limit, was itself insufficient to reach trial on any straightforward calculation of likely costs. The existence of top-up ATE cover available in the market resolved the theoretical shortfall for both types of policy equally, so the argument could not favour one over the other.

Fourth, Mr Evans would have used the BTE cover had he been told about it. The defendant urged the court to apply a loss-of-chance analysis following Perry v Raleys Solicitors [2019] UKSC 5, but Rowley SCJ held that the Perry framework is directed at professional negligence litigation, not Solicitors Act assessments. On the straightforward balance of probabilities, a client who has paid for insurance and is told it will save him £30,000 from his damages will use it.

What this does not mean, and the judgement is careful on this point, is that Fletchers lose all their base costs. The claimant sought a nil assessment along the lines of McDaniel & Co v Clarke [2014] EWHC 3826 (QB), where a solicitor failed to refer its client to a trade union willing to fund the claim entirely. Rowley SCJ distinguished the cases: BTE insurance provides an indemnity, not a blank cheque. The client remains liable to the solicitor for base costs, with the insurer stepping in behind him. Trade union funding is categorically different. The base costs survive; the success fee does not.

For any firm that still relies on a single standard letter to insurers and a lack of response as sufficient enquiry into BTE cover, this judgement is a prompt to revisit that practice. The standard set out in Sarwar v Alam [2001] and reinforced in Garrett v Halton Borough Council [2006] requires genuine engagement with potential insurers, not correspondence calibrated to discourage them. Fifteen years on from those decisions, the SCCO is in no mood to lower the bar.