Cookson & Anor v Ingham Clegg & Crowther (A Firm)

Where an organisation provides members with a legal advice and assistance scheme and selects solicitors to act under it, the members may authorise the organisation to monitor and replace those solicitors when reasonably necessary for the proper operation of the scheme. The solicitor-client relationship between the individual member and the appointed solicitor does not prevent that authority from being exercised. Lawful termination of the organisation’s retainer may therefore terminate the solicitor-client relationships created under the scheme and entitle the organisation to obtain the files for transfer to replacement solicitors. A member remains free to retain the former solicitor under a fresh, privately funded retainer. Whether notice should precede delivery of files may depend on the terms and circumstances of the authority, but it did not invalidate the order in this case.

British Cycling Federation provided members with a legal advice and assistance scheme. It selected and funded solicitors to pursue members’ accident claims. Ingham Clegg & Crowther acted both under its agreement with the Federation and for individual members referred through the scheme.

After finding repudiatory breaches, Penry-Davey J held that the Federation could terminate the solicitors’ retainer and require delivery of relevant files. The solicitors appealed, arguing that only the individual members could end their solicitor-client relationships and authorise delivery of their files. The central issue was the scope of the authority given by members to the Federation under the scheme.

1. Appeal dismissed. The order requiring delivery of the relevant files was upheld, with costs.
2. Per Judge LJ, with whom Mance LJ agreed, the arrangement involved three inter-linked relationships: membership between the Federation and its members; the retainer between the Federation and the solicitors; and distinct solicitor-client relationships between the solicitors and individual members. The existence of the individual solicitor-client relationships did not determine the scope of the Federation’s authority.
3. The scheme was presented as a service provided by the Federation. The Federation remained responsible for its operation, selected the solicitors, funded unrecoverable costs and retained supervisory responsibilities. The necessary implication was that members authorised it not merely to select solicitors but also to monitor and replace them where reasonably necessary for the proper conduct of the scheme and members’ claims.
4. The Federation was entitled, following the solicitors’ repudiatory breaches and the lawful termination of its own retainer, to terminate the solicitor-client relationships created through the scheme. Members who wished to continue with the former solicitors could do so only under new arrangements outside the scheme. The entitlement to delivery of the files followed from the lawful termination and the authority vested in the Federation.
5. Judge LJ regarded it as reasonable to infer that members pursuing claims would generally wish them to continue within the scheme. Mance LJ considered that delivery could be required so that replacement solicitors could take over, although he recognised the practical desirability of informing members and allowing them to make alternative arrangements. Evans LJ agreed that the Federation could terminate both aspects of the retainer, but considered that notice and an opportunity to retain the former solicitors afresh should ordinarily precede delivery. That qualification did not justify allowing the appeal, because the relief granted was properly treated as including a declaration that the relationships had terminated.

• Court of Appeal (Civil Division): Penry-Davey J’s order requiring delivery of the relevant files was upheld. The appeal was dismissed with costs.