Kerry Underwood

SOLICITORS’ LIENS – WHO TERMINATED THE RETAINER?

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The matters dealt with in this piece are examined in great detail in my three volume, 1,300 page book Personal Injury Small Claims, Portals and Fixed Costs – price £50 and available from Underwoods Solicitors here.

Kerry Underwood offers consultancy services in relation to this and other matters and details are here.

In

Walsh v Greystone Financial Services Ltd [2019] EWHC 2573 (Ch)

the Chancery Division of the High Court considered the issue of whether the solicitor or the client had terminated the retainer, and on the facts found that the solicitor had.

The legal significance of the case is its re-statement of the relevance of which party terminates the retainer.

If the retainer is ended by the client, for a reason other than solicitor misconduct, the client will usually not be able to access any money or property, nor inspect any documents subject to the solicitor’s lien.

If the solicitor terminates the retainer, even for good cause, the solicitor will generally be unable to exercise the lien where there is continuing litigation and thus, unless there are exceptional circumstances, the solicitor will normally be ordered to hand over the papers to the client’s new solicitors to hold them without prejudice to the lien, on a suitable undertaking.

Here, the solicitors wrote to the client stating that they could no longer act as the client had refused to pay their fees and gave him seven days’ notice of termination of the retainer.

The client instructed fresh solicitors the next day.

The court held that the solicitors had terminated the retainer.

Note also that absent agreement to the contrary, a solicitor client retainer is an entire contract – see

 

Vlamaki v Sookias & Sookias [2015] EWHC 3334 (QB):

 

“A solicitor’s retainer is an example of what, although known as an “entire contract”, is perhaps better described as involving an “entire obligation”: a solicitor can generally only claim remuneration when all work has been completed, or when there is a natural break. That, however, is subject to any agreement to the contrary”.

Written by kerryunderwood

October 30, 2019 at 7:03 am

Posted in Uncategorized

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