Manches LLP v Green (t/a Green Denman & Co)

A solicitor’s firm is not entitled to fees where the retainer requires services to be provided by a solicitor but the work is performed by an unqualified person. That rule may, however, be displaced by a later oral agreement, waiver or conduct, provided the firm proves that the client understood the person’s status and accepted the arrangement. The solicitor bears the primary responsibility for establishing the retainer’s terms. In a professional-negligence claim, where loss depends on what the claimant would have done, the question is determined on the balance of probabilities rather than by a loss-of-chance analysis. A solicitor’s bill must be signed by a partner under the Solicitors Act 1974.

Manches LLP claimed the unpaid balance of fees incurred in conducting Kenneth Green’s unsuccessful litigation against Skandia. Mr Green counterclaimed against Manches and the former partners of Marshall Ross & Prevezer for repayment of fees and damages, alleging that the firms had failed to obtain crucial evidence, had acted through an unqualified managing clerk contrary to the agreed retainer, and had failed to comply with costs-information obligations.

The costs-information issue was not pursued at trial and remained open for the ordered assessment. The principal issues were whether the failure to obtain evidence from Mr Adams caused loss, whether the Pilbrow principle defeated the firms’ entitlement to fees, and whether the bills complied with section 69(2) of the Solicitors Act 1974.

1. Adams issue. The firms had repeatedly advised that Mr Adams’ evidence was crucial to causation. The evidence established that Mr Green had been reluctant to have Mr Adams approached during the material periods, and that the advice given was adequate. There was therefore no breach of duty. In any event, Mr Green had not proved that he would have abandoned the Skandia proceedings had the evidence been obtained earlier.
2. Where the determinative question is what the claimant would have done, that question is resolved on the balance of probabilities, applying Allied Maples Group Ltd. v. Simmons & Simmons [1995] 1 WLR 1602. The counterclaim therefore disclosed no recoverable loss in tort and, at most, nominal damages in contract.
3. Pilbrow issue. The court accepted the principle stated in Pearless de Rougemont & Co. v. Pilbrow [1999] 3 All ER 355: where a client contracts for services to be provided by a solicitor, performance by an unqualified person does not provide the thing contracted for and ordinarily gives no entitlement to fees. The retainer may nevertheless be varied, or the point waived, by oral agreement or conduct. The burden of proving that the client was informed of the person’s status and accepted the arrangement lay on the firm. Having assessed the evidence, the court found that Mr Kirton had explained that he was not an admitted solicitor. The claim based on Pilbrow therefore failed.
4. The court also rejected the contention that the bills were improperly signed. It was satisfied that the bills had been signed by partners, as required by section 69(2) of the Solicitors Act 1974.
5. Manches was entitled to judgment on the bills, subject to the existing costs assessment. The counterclaims against Manches and the former MRP partners were dismissed. The judgment expressed no view on whether the bills were excessive or whether departures from estimates were justified.