Heather French v Carter Lemon Camerons LLP [2012] EWCA Civ 1180

Court of Appeal holds that a client of a firm of solicitors had unilaterally terminated their retainer, enabling the firm to assert a lien in relation to unpaid fees.

Comment

The operation and applicability of a solicitor’s lien is often misunderstood. It is, however, clear that where a solicitor’s client unilaterally terminates a retainer then a lien can be an effective method of securing outstanding fees. Solicitors should not therefore feel pressured into providing their file to a client in circumstances where the client has terminated the retainer and owes fees, even when faced with a claim or counterclaim in negligence (which are often faced by solicitors when pursuing fees from former clients).

Background

Ms French (HF) retained Carter Lemon Cameron LLP (CLC) in March 2010 to act for her in ongoing litigation. HF had previously retained and discharged a firm of solicitors in connection with the same proceedings, who asserted a lien over HF’s documents in relation to unpaid fees. Pursuant to an undertaking by CLC to preserve their lien, the file was released to CLC.

On 13 May 2010 HF emailed CLC setting out a series of criticisms of CLC’s conduct, raising concerns about their handling of the litigation and the relationship between them. The senior partner of CLC telephoned HF and arranged to meet later that day to discuss the email. The meeting was left that CLC would attend a case management conference (CMC) in the proceedings on HF’s behalf, which was to take place the following day, and that the question of the continuation of CLC’s retainer would be deferred until after the CMC.

Shortly after the CMC on 24 May 2010, CLC emailed HF to request a meeting to discuss the complaint. The following exchange culminated in an email from HF on 24 May 2010 in which she requested a copy of CLC’s file so as to enable her to proceed as a litigant in person. CLC responded on 26 May 2010, stating that if HF stood by the contents of her email it would become impractical for CLC to continue to act. HF responded stating that she could not withdraw her complaint and therefore CLC were dis-instructing themselves. CLC asserted a lien over the file.

Decision

HF argued that as CLC were not contractually entitled to terminate their retainer - conduct on the part of CLC that amounted to a repudiation that was accepted by HF would bring the retainer to an end, with CLC not entitled to its fees. HF submitted that the retainer was terminated at the meeting on 13 May 2010, when she accepted their repudiatory breach, or alternatively that CLC’s repudiatory breach was accepted on 24 May 2010, when she requested a copy of the file.

These arguments were rejected by the Court of Appeal, who held that the retainer had continued on 13 May 2010 and thereafter. The retainer was eventually terminated by HF in her email of 24 May 2010, in which she made severe criticisms and requested her file. While CLC responded to the email, the Court of Appeal rejected HF’s argument that this demonstrated that the retainer was terminated by CLC as her email of 24 May 2010 contained statements and queries which would require answers.

The Court of Appeal affirmed CLC’s right to assert a lien in relation to their unpaid fees.