Bad points are a “good reason” to terminate retainer, says Court of Appeal

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By Legal Futures

1 March 2010

A solicitor has good reason to terminate a retainer if a client insists on putting forward a case and instructing counsel to advance contentions that they do not consider properly arguable, the Court of Appeal has ruled.Overturning the High Court’s 2008 decision, Lord Justice Dyson in Richard Buxton v Mills-Owen [2010] EWCA Civ 122 said there is no comprehensive definition of what amounts to a good reason to terminate in the Solicitors Code of Conduct. However, he accepted the argument of the intervening Law Society that Mr Justice Mackay was wrong to restrict it just to circumstances were the solicitor is instructed to do something improper.

The case concerned well-known Cambridge-based environmental law firm Richard Buxton, which was acting on an appeal against a decision of a planning inspector and whose client failed to understand that he could only challenge the decision on the basis of a legal flaw; he wanted the appeal presented on a much wider basis by reference to the merits of the case and the need to safeguard the environment.

The client refused to accept the advice that this would not succeed, and his lawyers’ more focused approach, and the firm eventually withdrew shortly before the hearing, having also sought advice from the Law Society, which backed the move.

The High Court had refused the solicitors their costs up to the date of termination on the basis that they had not fulfilled the “entire contract” of the retainer. Lord Justice Dyson allowed the costs and disbursements, saying: “The common law rule that a solicitor is entitled to be paid for all the work he has done prior to termination if he terminates for good reason has been part of our law for almost 200 years.”

The judge also highlighted a passage on Mackay J’s ruling from Cook on Costs, in which Michael Cook suggested that the “the solicitor should have continued to act and adopted the traditional coded message to the court used in these circumstances: ‘I am instructed to act.’”

Lord Justice Dyson said he disagreed with this advice – if an advocate does not consider a point to be properly arguable, “he should refuse to argue it… Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided”.

Law Society president Robert Heslett said: “The judgement is an important clarification for our members who are faced with the difficult scenario of being instructed to make untenable arguments to court. The situation whereby a solicitor would be left unpaid for services rendered prior to ceasing to act where the client insists on such arguments was unfair to solicitors who owe strong duties to the court and the justice system as well as to their clients.

“Like any business, solicitors should be paid for the services they provide and be confident in refusing to make arguments which they do not think they can professionally articulate or which would breach their professional duties.”

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