The claimant solicitors sought a declaration as to whether they had a right to assert a solicitor’s common law lien over sums in its client account. The defendant clients had asserted a security interest in the money and had assigned that interest, but the claimants said that substantial sums remained due to it in fees.
Held: The application succeeded. Withers established that they had a retaining lien over the monies held in their client account in respect of their reasonable legal fees and expenses in relation to these proceedings.
The court orders in the case had created no security interest in the fund. They explicity allowed for the payment of certain expenses including legal ones, and the clients had no such interest. The court summarised the solicitors position: ‘At common law, a solicitor has two rights which are termed liens. The first is a right to retain property already in his possession until he is paid costs due to him in his professional capacity; this lien is called a retaining lien. The second right, called a lien, is the right to ask the court to direct that personal property recovered under a judgment obtained by his exertions stand as security for his costs of such recovery; this is called a preserving lien. In addition, a solicitor has by statute (now Solicitors Act 1974, section 73) a right to apply to the court for a charging order on property recovered or preserved through his instrumentality in respect of his assessed costs of the suit, matter or proceedings prosecuted or defended by him. The lien asserted by Withers is a common law retaining lien.’
A solicitor having a retaining lien over property in his possession is entitled to retain the property as against the client and all persons claiming through him and having no better right than the client, until the full amount of the solicitor’s assessed costs payable by the client is paid. The solicitor has no better right to retain the property in question than his client would have had if he still had possession of it.
Morgan J
[2011] EWHC 1151 (Ch), [2011] BPIR 1202, [2011] PNLR 22, [2011] 3 All ER 842
Bailii
England and Wales
Citing:
Cited – Sterling, Ex Parte 7-Aug-1809
The court considered the status of a solicitor’s lien over papers in his possession.
Held: The lien was limited to the occasion on which they were delivered without a special agreement otherwise. One can infer from the client placing into the . .
Cited – Stevenson And Another, Assignees of Collis, A Bankrupt, v Blakelock 28-May-1813
. .
Cited – Loescher v Dean ChD 1950
The plaintiff sought specific performance, and obtained an order that the defendant vendor should convey the property to him on the payment for it. The plaintiff paid the sum to the defendant’s solicitors, who paid it into their client account. The . .
Cited – Pelly v Wathen 15-Mar-1849
The lien of a solicitor on the deeds of his client is a legal right which cannot be greater in extent than the interest of the client in the deeds, and does not enable the solicitor to retain the deeds against third parties, where the client could . .
Cited – Edwards, Drummond Smith v Flightline Limited CA 5-Feb-2003
The applicant company obtained an injunction against another company. That freezing injunction was discharged upon the payment of a sum into the names of the respective parties’ solicitors. The company went into liquidation, and the claimant . .
Cited – Barratt v Gough-Thomas 1951
. .
Cited – In re Long, ex parte Fuller 1881
. .
Cited – Stumore v Campbell 1892
. .
Cited – Halvanon Insurance Co Ltd v Central Reinsurance Corporation CA 1988
The fact that a contract was made by an unauthorised insurer contrary to the 1974 Act, which was silent as to the effect of a breach of this statute, did not render the contracts made by the unauthorised insurer void. Rendering transactions void . .
Cited – Barratt v Gough-Thomas 1951
. .
Lists of cited by and citing cases may be incomplete.
Legal Professions
Leading Case
Updated: 11 November 2021; Ref: scu.434923