CA backs solicitors’ lien over files after client ends retainer


Court of Appeal: client, not firm, terminated retainer

The Court of Appeal has upheld a London law firm’s lien over a client’s files because of an unpaid bill after the relationship between the two broke down.

The court rejected the client’s suggestion that Carter Lemon Camerons had terminated the retainer, in breach of contract, by refusing to continue to act for her in litigation against an insurance company, amounting to a repudiation of the retainer.

It was argued that under the ‘entire contract’ doctrine, this meant the solicitors were not entitled to be paid any fees and so could not assert any lien.

The alternative argument, also rejected by the court, was that because the solicitors had discharged themselves from the case, they were not entitled to assert a lien so as to prevent the papers being passed to new solicitors or even the client herself to act as a litigant in person.

The firm had succeeded in establishing its lien in the lower courts.

The case turned on a meeting between the client, Heather French, and the firm’s senior partner, Seamus Smyth, following a complaint by Ms French about the conduct of her case. Despite suggestions during the meeting from Mr Smyth – former president of the London Solicitors Litigation Association – that the firm could not continue to act as trust between solicitor and client had broken down, Ms French made it clear that she was not withdrawing her instructions.

Mr Justice Morgan, sitting in the Court of Appeal with Lord Justices Lloyd and Stanley Burnton, said: “I do not consider that there ever came a point during the meeting when the original retainer was terminated.” Nor did he find that Mr Smyth’s comments amounted to notice to terminate the retainer at a fixed time in the future.

It was common ground that the retainer had come to an end a fortnight later, when Ms French wrote to the master dealing with the litigation to say that she was now acting in person. A few days before that she had written an e-mail outlining her grievances to the former partner appointed by the firm to deal with the complaint, which Mr Justice Morgan said amounted to a “sufficiently clear termination of the solicitors’ retainer”.

He explained: “There are parts of that e-mail which appear clearly to state that Ms French is terminating the solicitors’ retainer. I have in mind the severity of her criticisms of the solicitors, her statement that the solicitors left her with no choice and her suggestion that the solicitors send the files to her so that she could continue on her own…

“In those circumstances, in accordance with the established authorities as to a solicitor’s retaining lien, the solicitors were entitled to assert such a lien over Ms French’s documents in relation to their unpaid fees.”

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