Solicitor - Retainer - Dispute over fees

Hodge Jones & Allen v McLaughlin: Queen's Bench Division (Michael Harvey QC sitting as a deputy judge of the High Court): 23 September 2011

The claimant was a firm of solicitors. They had been instructed by the defendant in proceedings in 2006, for proceedings under the Children Act 1989 in relation to the two children of the marriage, and a claim for ancillary relief in her divorce proceedings. The claimant claimed £24,800 for outstanding fees. The defendant counterclaimed for damages for alleged professional negligence, in that, inter alia, the claimant had failed to notify the husband’s solicitors of her receipt of her passport, and in respect of their failure to clarify the position in respect of her application for public funding.

The defendant submitted that the sums claimed by the claimant were not reasonable. The claimant asserted, inter alia, that the defendant had suffered no loss as a result of any failings on its part.

The claim would be allowed. The counterclaim would be allowed in part.

(1) In the circumstances, the sum claimed was reasonable for the services which had been undertaken. The contention that the claimant’s services had been of no use to the defendant and/or that there had been a total failure of consideration would be rejected (see [322] of the judgment).

(2) It was settled law that damages should compensate a claimant for loss which had been truly suffered, as distinct from loss of an unjustified windfall to which the claimant was not properly entitled. (see [292]-[296] of the judgment).

The counterclaim would succeed in part. The claimant had failed to notify the husband’s solicitors of her receipt of her passport, and had failed to clarify the position in respect of her application for public funding. However, the defendant had failed to show that those failures caused any loss, and would be entitled to nominal damages only. The other allegations contained in the counterclaim would be dismissed (see [323] of the judgment). Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 4 All ER 907 considered; Harrison v Bloom [1999] 45 LS Gaz R 32 considered; Whitehead v Hibbert Pownall & Newton (a firm) [2008] All ER (D) 60 (Apr) considered.

Scott Matthewson (instructed by Hodge Jones & Allen LLP) for the claimant. The defendant appeared in person.