Richard Buxton (Solicitors) v Mills-Owens & Anor

A solicitor retained to conduct litigation to its conclusion may terminate the retainer on reasonable notice for good reason. Good reason is a fact-sensitive concept and is not confined to instructions involving impropriety or misleading the court.

A solicitor must not advance, or instruct counsel to advance, a contention which the solicitor considers not properly arguable. A client's insistence that hopeless contentions be advanced may therefore justify termination. An advocate should either argue a properly arguable point without reservation or refuse to argue it, rather than use coded language to signal disbelief in the submission.

Where an entire retainer is terminated for good reason, the solicitor is entitled, subject to the parties’ agreement, to proper profit costs and disbursements for work performed before termination.

The appellant solicitors were retained to advise upon and prosecute a statutory planning appeal under section 288 of the Town and Country Planning Act 1990. The client insisted that the solicitors and counsel advance three grounds which they considered hopeless and not properly arguable. After prolonged correspondence, the solicitors terminated the retainer and claimed their profit costs and disbursements.

Master O’Hare held that the solicitors lacked just cause to terminate and were not entitled to profit costs. Mackay J dismissed their appeal in (2008) EWHC 1831 (QB), holding that termination was unavailable unless continued representation would involve impropriety or misleading the court.

The solicitors appealed with permission. The Law Society intervened. The central issues were whether the solicitors had good reason to terminate the retainer and, if so, whether they could recover profit costs and disbursements incurred before termination.

1. The appeal was allowed unanimously. Although the retainer was an entire contract to conduct the statutory appeal to its conclusion, that did not prevent lawful early termination. At common law, and under the agreed terms of business, the solicitors could terminate on reasonable notice for good reason.

2. Good reason is a fact-sensitive concept without a comprehensive definition. It is not confined to circumstances in which the client requires impropriety or the misleading of the court. Examples include inability to obtain clear or proper instructions, a serious breakdown in confidence, non-payment of a reasonable sum on account and conduct by the client which prevents the solicitor from acting as a solicitor should.

3. Even before the express provision in the Solicitors’ Code of Conduct 2007, solicitors, as officers of the court, were professionally bound not to include in court documents contentions which they considered not properly arguable and not to instruct counsel to advance such contentions. That duty was reinforced by rule 1.3 of the Civil Procedure Rules, because advancing hopeless arguments does not further the overriding objective.

4. The solicitors and counsel considered grounds (b) to (d) hopeless, wrong in law and incapable of proper articulation as legal arguments. The client also continued to seek a challenge to the planning merits, although section 288 of the Town and Country Planning Act 1990 permitted a challenge only for legal error. His insistence that those arguments be advanced gave the solicitors good reason to terminate.

5. An advocate should argue a properly arguable point without reservation and refuse to argue one which is not properly arguable. The coded expression that an advocate is merely instructed to make a submission should be avoided; it improperly signals that the advocate regards the point as weak or hopeless.

6. The longstanding common-law rule permits a solicitor who terminates an entire retainer for good reason to recover proper profit costs and disbursements for work performed before termination, subject to the parties’ agreement. The solicitors were therefore entitled to such costs and disbursements. The client’s permitted cross-appeal concerning disbursements did not arise.

• Court of Appeal (Civil Division): The solicitors’ appeal was allowed unanimously in [2010] EWCA Civ 122. The court held that they had good reason to terminate and were entitled to proper profit costs and disbursements incurred before termination.
• Queen’s Bench Division: Mackay J, sitting with two assessors, dismissed the solicitors’ appeal in (2008) EWHC 1831 (QB). He held that the circumstances fell short of those permitting termination and upheld the costs assessment.
• Costs assessment: Master O’Hare held that the solicitors should have followed the client’s instructions despite considering them doomed to failure. He disallowed their profit costs but substantially allowed their disbursements.