Legal profession – Instructions – Retainers – Solicitor and client costs

Richard Buxton (solicitors) v Huw Llewelyn Paul Mills-Owens: QBD (Mr Justice Mackay, Master Simons, Martin Cockx, sitting as an assessor): 28 July 2008

The appellant firm of solicitors (B) appealed against a decision of a costs judge to disallow its claim for profit costs for acting for the respondent (M). B had acted for M on a statutory appeal in relation to the grant of ­planning permission.

B had advised M that for such an appeal to succeed it was necessary to point to a procedural error or other legal flaw. M wanted the appeal to be presented on a much wider basis by reference to the merits of the case. Counsel was instructed, and he ­prepared a skeleton argument that focused on a ground of claim which arguably involved an error of law, ignoring grounds that could be described as going to the merits of the planning decision. M insisted that he wanted to plead the merits, but B informed him that it would no longer be able to act for him if the parties could not agree on what approach to take.

After advice from the Law Society, B formally came off the record and terminated the retainer just days before the appeal hearing. M was obliged to represent himself at the hearing and his appeal was dismissed. B presented M with a bill for its profit costs and unpaid disbursements. The costs judge held that B should not have terminated the instructions as it did, and that because it failed to carry out M’s instructions it was not entitled to its fees in the matter. He found that although B had advised that M’s instructions were doomed to disaster, M’s instructions were nevertheless not improper. The costs judge allowed B’s claim for unpaid disbursements.

B submitted that M had instructed it to advance an improper case in the sense of it being not properly arguable, whereas the skeleton ­argument drafted by counsel was wholly tenable. B also argued that under the Professional Conduct of Solicitors Rules (1999) at the time, a good reason for termination of a retainer was where a solicitor could not continue to act without being in breach of the rules, where a solicitor was unable to obtain clear instructions from a client, or where there was a serious breakdown in ­confidence between the solicitor and client.

Held: M’s instructions contained no impropriety. If a client who was ­prepared to pay for a case to be advanced, and who wanted the claim advanced on a particular basis that did not involve impropriety on the part of the solicitor, then it was no answer for the solicitor to say that he believed that it was bound to fail and therefore he would not do it. Whatever one thought about M’s stance, his instructions were firm and unequivocal as to how the case was to be presented and B ought to have followed them. The present situation fell short of the line where the solicitor would have been entitled to terminate the ­retainer, and the costs judge was right to assess the matter as he did. In addition, the nature of the retainer was for B to act for M throughout the course of his statutory appeal, and the retainer stated that B could only ­terminate the retainer for good ­reason. In the circumstances, it was clear that there was no just cause for termination. B was not entitled to its fees, Underwood Son & Piper v Lewis (1894) 2 QB 306 CA, and Warmingtons v McMurray (1936) 2 All ER 745 0 applied.

Appeal dismissed.

Richard Buxton for the appellant; the respondent appeared in person.