David Truex, Solicitor (a firm) v Kitchin

A solicitor must consider and advise on legal aid or public funding at the outset of the retainer where the client might be eligible. The duty cannot be postponed while the solicitor gathers information, incurs private costs or develops the client relationship.

The assessment must consider all information available, including indications that the client has no money or is borrowing to pay fees. A solicitor must make proper inquiries of the client and cannot rely on unverified information supplied by the opposing side.

A firm of solicitors claimed approximately £21,000 in professional fees from a client involved in divorce and related family proceedings. The client had paid £9,000 on account, denied liability and counterclaimed for repayment, alleging that the firm negligently failed to advise her that she might qualify for public funding.

His Honour Judge Ryland dismissed the fee claim and ordered repayment of the sums paid, subject to a small deduction for the first conference. The firm appealed, arguing principally that the duty arose only after the retainer commenced and further information had been gathered. The central issue was when the solicitor’s duty to consider and advise on public funding arose.

The appeal was dismissed. Lord Justice Waller gave the reasons for the decision, and Lord Justice Lawrence Collins agreed.

1. The relevant professional guidance imposed a duty to consider and advise the client on the availability of legal aid where the client might be entitled to assistance under the Legal Aid Act 1988. The Family Law Protocol reinforced that duty and required a client who might be eligible, but who had consulted a firm that did not undertake publicly funded work, to be given the option of referral.
2. The duty operated at the outset of the retainer. A solicitor was not entitled to continue taking instructions and running up privately chargeable costs until accumulated information made eligibility apparent. The date on which the retainer formally commenced was therefore not determinative.
3. The information had to be assessed as a whole. The alleged £100,000 dividend could not be considered in isolation. The solicitor also knew that the client had no money, had not received an indicated salary, did not understand the company’s finances and was borrowing from her parents. Once those matters were known, only inquiries revealing assets that placed public funding beyond question could justify disregarding the issue.
4. Information from the husband’s solicitors about properties in Italy and Germany could not replace proper inquiries of the client. The accurate position, as later confirmed, was that the client’s interest in the German property had no value.
5. The immediate decision of Bindmans to grant emergency funding was further confirmation that eligibility should have been contemplated earlier; there had been no material change in circumstances. The firm did not pursue causation on appeal, and the court considered that timely advice would have led to an early transfer to a publicly funded firm. The funding code made under section 8 of the Access to Justice Act 1999 supplied relevant context for emergency representation.

1. Central London Civil Justice Centre: On 7 December 2005, His Honour Judge Ryland found the solicitors negligent, dismissed their claim for fees and gave judgment on the counterclaim for repayment, subject to a small deduction for the first conference.
2. Court of Appeal (Civil Division): The appeal was dismissed. [2007] EWCA Civ 618.