Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor may terminate his retainer without cause and judgment was entered in favour of the solicitors.
Held: The retainer could only be lawfully terminated on reasonable grounds. The court considered the potential for conflict for a solicitor acting in litigation and the extent of his retainer. Lord Esher MR said: ‘When one considers the nature of a common law action, it seems obvious that the law must imply that the contract of the solicitor upon a retainer in the action is an entire contract to conduct the action to the end. When a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step, and then give him fresh instructions to take another step, and so on; he instructs the solicitor as a skilled person to act for him in the action, to take all the necessary steps in it, and to carry it on to the end. If the meaning of the retainer is that the solicitor is to carry on the action to the end, it necessarily follows that the contract of the solicitor is an entire contract – that is, a contract to take all the steps which are necessary to bring the action to a conclusion. When it is shewn that there were no special terms, but only the ordinary retainer for the purposes of the action, the implication I have mentioned is that which every reasonable person would make, and therefore the implication which the law makes in such a case . . there may be circumstances which justify the solicitor in putting an end to the contract, but . . he cannot do so without giving reasonable notice. The result. . seems to me to be that, though there may be valid reasons for giving such a notice, if no such notice is given, the contract of the solicitor is an entire contract, and he cannot sue for his costs before the termination of the action.’ and ‘I do not propose to go through all the cases cited but it seems to me that from time downwards it has been held that a solicitor cannot sue for his costs until his contract has been entirely fulfilled, unless the case is brought within some recognised exception to the general rule.’
AL Smith LJ said: ‘On the other hand, it is clear that the solicitor may be placed in such a position by the client as to absolve him from the further performance of that contract. It appears to me from the case of Vansandau v Browne and the subsequent cases which have been cited, that the client may put the solicitor in such a position as to entitle him to decline to proceed; for instance, if the solicitor asks for necessary funds for disbursements, and such funds are refused by the client, the solicitor is not bound to go on; and, speaking for myself I should say that the solicitor is not bound to go on acting for the client if the client insists on some step being taken which the solicitor knows to be dishonourable; and many other cases may be supposed in which the solicitor may be entitled to refuse to act for the client any further. I should say that when a solicitor is in a position to show that the client has hindered and preventing him from continuing to act as a solicitor should act, then upon notice he should decline to act further; and in such a case the solicitor would be entitled to sue for the costs already incurred. But we have not now to deal with such a case. The sole question here is whether the solicitor is entitled without rhyme or reason to throw up his retainer having giving due notice of intention to do so. I do not think that he is so entitled.’
Judges:
Lord Esher MR, AL Smith LJ
Citations:
[1894] 2 QB 306, [1894] UKLawRpKQB 96
Links:
Jurisdiction:
England and Wales
Citing:
Cited – Vansandau and Brown v Browne 24-Nov-1832
An attorney is not compelled to proceed to the end of a suit in order to be entitled to his costs, but may, upon reasonable cause and reasonable notice, abandon the conduct of the suit, and in such case may recover his costs for the period during . .
Cited by:
Cited – Young, Young, Irby v Robson Rhodes and Frank Attwood ChD 30-Mar-1999
Where a merger was proposed between two accountancy firms, who had provided litigation support services to opposing sides in a case, it was necessary to separate the two halves most rigorously including physical separation in order to ensure no . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Heywood v Wellers CA 1976
The claimant instructed solicitors in injunction proceedings which they conducted negligently. The solicitors had put the case in the hands of an incompetent junior clerk. She sued acting in person, and succeeded but now appealed the only limited . .
Cited – Donsland Limited v Nicholas Van Hoogstraton CA 2002
Once a transaction in respect of which the solicitor was retained is completed, the retainer comes to an end, and with it the fiduciary relationship between client and solicitor. . .
Mentioned – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005
The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
Cited – Richard Buxton (Solicitors) v Mills-Owens QBD 28-Jul-2008
The solicitors appealed against refusal of their costs. They had begun to act but withdrawn part way through the case. The costs judge had said that they had been wrong to do so. Though the client’s instructions would be disastrous, they were not . .
Cited – Richard Buxton (Solicitors) v Mills-Owens and Another CA 23-Feb-2010
The solicitors felt that the instructions received from their client were to pursue points which neither they nor counsel thought were properly arguable. They withdrew from the case, and now appealed against a refusal of their costs on the basis . .
Cited – French v Carter Lemon Camerons Llp CA 3-Sep-2012
The appellant had instructed the defendant solicitors in litigation. On beginning to act in person she sought an order to require the solicitors to deliver the case papers to her. They asserted a lien on them until their account was paid. She now . .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Updated: 23 March 2022; Ref: scu.200454