Richard Buxton (Solicitors) v Mills-Owens

A solicitor’s retainer to conduct litigation is ordinarily an entire contract. Where the client gives firm instructions to advance a case which the solicitor considers likely to fail, the solicitor must continue to act if the instructions are proper and do not involve impropriety or misleading the court, provided clear advice has been given. Premature termination without just cause prevents recovery of profit costs. The principle does not ordinarily prevent recovery of disbursements already paid, although the solicitor normally bears the costs of removing himself from the record. A court may decline to imply contractual terms requiring the client to act reasonably or permitting termination merely because the solicitor considers the case hopeless.

Solicitors appealed against an order of Master O’Hare on detailed assessment. They had acted for the respondent in a statutory planning appeal but terminated the retainer shortly before the Administrative Court hearing after disagreement about the grounds and presentation of the case. The Master disallowed the solicitors’ profit costs for that work, while allowing unpaid disbursements and costs relating to a separate roads matter.

The appeal concerned whether the solicitors had just cause to terminate, whether the entire-contract principle should be modified, and whether the respondent was liable for disbursements. The respondent also challenged parts of the assessment and sought additional costs.

1. Appeal and cross-appeal. The appeal was dismissed. The respondent’s cross-appeal succeeded only in part. Two specified sums were deducted as irrecoverable disbursements, and the costs of the assessment were increased by £650.
2. Termination of retainer. The client’s instructions were firm and unequivocal. Although the solicitors reasonably considered the proposed grounds unlikely to succeed, the instructions were not improper and did not require misleading the court. A solicitor who has given clear advice must ordinarily follow a client’s proper instructions, even where the solicitor honestly believes the case is bound to fail. The Master was entitled to find that there was no just cause for termination.
3. Entire contract. The retainer covered the statutory appeal as a whole. Under Underwood Son and Piper v Lewis [1894] 2 QB 306, a solicitor cannot ordinarily recover profit costs until the entire contractual undertaking has been performed, subject to recognised exceptions. Warmingtons v McMurray [1936] 2 All ER 745 confirmed the contractual basis of the rule.
4. The court declined to imply terms requiring the client to act reasonably or allowing the solicitor to terminate where the case appeared hopeless. Such terms were not necessary for performance of the retainer. Any wider review of the principle should await an appropriate case.
5. The entire-contract principle did not extend to monies already disbursed for counsel’s fees, court fees and similar expenses. However, the issue fee and travel expense incurred for removing the solicitors from the record should be borne by the solicitors themselves.
6. The separate roads matter involved different issues, evidence and defendants. The Master was entitled to treat it as a separate retainer and allow the related profit costs.

High Court (Queen’s Bench Division): The appeal from the order of Master O’Hare dated 31 January 2008 was dismissed. The cross-appeal succeeded only as to the deduction of two disbursements and an additional £650 for assessment costs.