LAWYER & CLIENT RETAINERS (T2)

TOPIC 2

What is a solicitor–client retainer?

The contractual arrangement under which a solicitor agrees to provide legal services to a client. It establishes the work undertaken and the basis of the solicitor’s entitlement to payment.

Why is the retainer fundamental to costs recovery?

It establishes the solicitor’s authority to act and the client’s liability for fees. Whether particular costs can be charged depends on the existence, scope and terms of the retainer.

What principle is associated with JH Milner & Sons v Percy Bilson [1966]?

Without a retainer, there is no entitlement to charge the alleged client for the work as their solicitor. Percy Bilton

What is an entire contract?

A contract under which completion of the agreed obligation is generally a condition of entitlement to the contractual payment, subject to applicable exceptions and contrary terms.

Is a solicitor’s retainer usually an entire contract?

A retainer to conduct litigation to its conclusion is generally presumed to be entire unless agreed otherwise. Its actual classification depends on its terms and circumstances.

How does an entire contract affect when a solicitor may seek fees?

Unless the agreement provides otherwise, fees generally become recoverable on completion or when the retainer otherwise ends in circumstances giving an entitlement to payment. Disbursements may be treated separately.

The retainer may expressly permit interim billing instead of requiring the solicitor to wait until the matter ends.

Can a solicitor terminate an entire retainer before the work is completed?

Yes. The entire-contract principle does not prohibit all early termination. A solicitor generally needs good reason and reasonable notice, taking account of legal, contractual and professional obligations.

A serious conflict arises, requiring the solicitor to consider ending the retainer and protecting the client’s position.

Why are CFAs commonly discussed as entire contracts?

Payment of the fees covered by the conditional arrangement ordinarily depends on the agreed definition of success being satisfied. The precise payment and termination provisions must still be checked.

A CFA makes specified fees payable if the client recovers damages, subject to its terms.

What must be checked before deciding whether fees are payable under a CFA?

The contractual definition of success, which fees are conditional, the treatment of disbursements, and any provisions governing termination or other payment events.

A settlement may satisfy the CFA’s success definition even though the case never reaches trial.

What principle is associated with Wild v Simpson [1919]?

Where the retainer is entire, failure to perform the whole obligation may prevent the solicitor demanding fees, subject to matters such as substantial performance.

A solicitor who leaves the agreed work materially incomplete may be unable to demand the contractual fee.

What is the doctrine of substantial performance?

It may allow recovery where the contractual obligation has been substantially completed despite defects or omissions, potentially with a deduction. Its application depends on the contract and facts.

Minor outstanding defects may be treated differently from abandonment halfway through the agreed task.

What principle does Sumpter v Hedges [1898] illustrate?

A party who abandons an entire contract generally cannot demand pro-rata payment or restitution merely because some work has been performed. It is a general contract case, not a solicitor-retainer case.

A contractor abandons an entire project and cannot automatically charge a percentage simply because part was completed.

What does pro-rata payment mean?

Payment calculated proportionately to the part of the work performed. An entire contract does not automatically confer that entitlement.

Completing 40% of an entire obligation does not necessarily create a right to 40% of the fee.

What is a claim in restitution in this context?

A claim seeking payment for the value of a benefit conferred, rather than enforcing the agreed contractual fee. Partial performance of an entire contract does not automatically justify such recovery.

What governs the form and content of a retainer?

General contract law, applicable statutory formalities and professional regulatory requirements.

What six contractual elements are listed in these notes?

O–A–C–I–C–L.

Offer;

Acceptance;

Consideration;

Intention to create legal relations;

Capacity; and

Legality.

A solicitor offers services on stated terms, which a legally capable client accepts in a lawful arrangement intended to be binding.

What are offer and acceptance in a retainer?

An offer proposes the terms on which legal services will be provided; acceptance signifies agreement to those terms.

A firm offers to advise for an agreed fee, and the client accepts that proposal.

What is consideration in a retainer?

Something of value exchanged between the parties, commonly the solicitor’s promise to provide services in exchange for the client’s promise to pay on agreed terms.

The solicitor promises legal advice; the client promises the agreed payment.

What does intention to create legal relations mean?

The parties intend their arrangement to create legally enforceable obligations.

A formal instruction to a firm is distinguished from an informal social conversation about a legal problem.

What do capacity and legality mean when forming a retainer?

Capacity means the necessary legal ability to enter the arrangement. Legality means that the arrangement and its purpose must be lawful.

A solicitor considers whether a proposed client can validly instruct and contract for the services.

Why should the scope and limits of the retainer be clear at the outset?

So both parties understand which services are requested and provided, and which limitations or exclusions have been agreed.

The solicitor agrees to advise on settlement but is not instructed to conduct proceedings.

What are implied terms?

Terms forming part of a contract even though not expressly stated. They may arise under legislation, established legal principles or, where appropriate, the circumstances and conduct of the parties.

A consumer retainer includes an obligation to exercise reasonable care and skill even if the agreement does not repeat it.

How does the Consumer Rights Act 2015 affect a consumer retainer?

It supplies statutory contractual protections for services provided by a trader to a consumer, including reasonable care and skill, and applicable default rules on price and time.

An individual obtains legal advice from a firm for a personal matter.

What does CRA 2015, s.49 require?

Services must be performed with reasonable care and skill.

A solicitor must exercise reasonable professional care when preparing advice.

What does CRA 2015, s.51 provide where the price is not fixed?

Where the statutory conditions apply and the price has not been fixed by the contract or another applicable mechanism, the consumer must pay a reasonable price, and no more.

Legal work is instructed without an agreed price; the charge must be reasonable.

What does CRA 2015, s.52 provide where the time is not fixed?

Where the statutory conditions apply and the time for performance has not been fixed, the service must be performed within a reasonable time.

No completion date is agreed for advice, but the solicitor cannot delay it indefinitely.

What forms can an ordinary unwritten retainer take?

It may be oral or implied from conduct, subject to any applicable statutory formalities.

A client orally instructs a solicitor, who accepts and begins the agreed work.

Why are unwritten retainers more likely to produce disputes?

There is no written record of the agreed terms, making the existence, scope, price or other obligations harder to prove. Other evidence may still exist.

The solicitor and client disagree about whether advice on an appeal was included.

What principle is associated with Fladgate LLP v Harrison [2012]?

A retainer need not necessarily be written: instructions and the parties’ dealings can establish an oral or implied solicitor–client engagement.

A client gives instructions and the solicitor accepts them without a signed engagement letter.

What principle is associated with Groom v Crocker [1939]?

A retainer may be inferred where the parties’ conduct establishes that a solicitor–client relationship has in fact arisen.

A person knowingly allows a solicitor to act for them and communicates with them as their legal representative.

What is the first question in the costs-liability analysis discussed in Robinson v EMW Law [2018]?

Were the solicitors acting for the party as their client, with their knowledge and assent? If so, a rebuttable presumption of liability for costs may arise.

Solicitors act in litigation with the party’s knowledge and agreement.

What is the second question in that Robinson analysis?

Was there an agreement that the client would have no liability for costs in any circumstances? Such an agreement can rebut the presumption.

The parties agree that the solicitor will act without charging the client in any circumstances.

What conduct may support an alleged implied retainer?

Acting on the court record, taking litigation steps and doing so with the alleged client’s knowledge and assent may be relevant evidence. Conduct must be assessed in context.

A firm files documents for a party who knows of and agrees to its involvement.

What qualification is important when revising Robinson v EMW Law [2018]?

Do not treat it as an automatic finding of an implied retainer. Where a written retainer has a defined scope, an alleged wider implied retainer must be proved; the presumption does not automatically extend it.

A written engagement covers an individual’s work, but recovery is sought for additional work by others outside its stated scope.

What principle is associated with Griffiths v Evans [1953]?

In a dispute over the scope of an unwritten retainer, the client’s account may be preferred or given greater weight because the solicitor has professional knowledge and responsibility to clarify the instructions. This is not an automatic rule that the client always wins.

The solicitor says an instruction was narrowly limited, but failed to record that limitation clearly.

Why does Griffiths v Evans place particular responsibility on the solicitor?

The client may lack legal knowledge, while the solicitor is, or should be, professionally knowledgeable and able to explain and record the arrangement.

A client does not appreciate that a limitation excludes an important part of the work unless the solicitor explains it.

How is written client-care information traditionally provided?

Through a client-care letter. A leaflet or other suitable written format may also communicate the information, provided applicable requirements are satisfied.

A firm supplies an engagement letter with a client-care leaflet and applicable terms.

What equality, diversity and vulnerability issues should be considered when communicating the retainer?

What equality, diversity and vulnerability issues should be considered when communicating the retainer?

A solicitor offers large print, an accessible electronic version or an explanation suited to the client’s communication needs.

What three core matters should a written retainer set out?

The terms of the services; the work to be done; and how the work will be charged and paid for.

The agreement identifies the instruction, relevant limitations, charging basis and payment arrangements.

What should the written retainer explain about charging and payment?

The basis on which charges are calculated and how and when payment is required, together with applicable funding conditions and disbursement arrangements.

A retainer specifies an hourly rate, billing arrangements and how disbursements are funded.