Radford & Anor v Frade & Ors

A conventional retainer may be superseded by a conditional fee agreement where the parties objectively intend the latter to govern all subsequent work. Work falling outside the written agreement does not revive the former retainer where the parties continued to understand that payment depended on success. Any implied conditional fee agreement must satisfy the statutory requirement for writing.

A costs order compensates the receiving party for liabilities existing when the order is made. A later retrospective variation of a lawyer’s retainer cannot increase the paying party’s liability under that order.

The appellants successfully obtained summary judgment in litigation arising from a film project and received costs orders against the respondents. On assessment, they sought solicitors’ and counsel’s fees for work performed after the scope of their written conditional fee agreements had ended.

The Costs Judge held that no enforceable retainer covered that work. Warby J dismissed the appellants’ appeal. The further appeal concerned whether a former conventional retainer remained effective, whether a conventional obligation to pay could be implied, and whether a post-order deed retrospectively adding corporate clients to counsel’s agreement could enlarge the respondents’ liability.

1. The appeal was dismissed unanimously. The solicitors’ original conventional retainer did not coexist with the later conditional fee agreement or revive when work proved to fall outside that agreement. Objectively assessed in context, the parties intended the conditional fee agreement to supersede the original retainer and govern all subsequent work short of a full trial.

2. The ordinary inference that a client who knowingly accepts professional services must remunerate the professional was displaced. Unlike the circumstances considered in Adams v Improved Motor Coach Builders Ltd [1921] 1 KB 495 (CA), the parties had entered two express retainers and retained a shared understanding that payment depended on success. Their conduct after the written agreement’s scope ended remained consistent with a no-win, no-fee arrangement. The solicitors did not submit interim bills or otherwise revert to conventional charging.

3. The work performed after 23 May 2012 was therefore undertaken under an implied conditional fee agreement rather than a conventional or quantum meruit retainer. That agreement was unenforceable because it had not been reduced to writing as required by section 58(3)(a) of the Courts and Legal Services Act 1990. The same reasoning defeated the claim for counsel’s post-23 May 2012 fees.

4. Following Kellar v Williams [2004] UKPC 30, a retrospective variation made after a costs order cannot increase the paying party’s liability. The order compensates the receiving party for costs paid or payable when the order is made. Liability crystallises at that point, although its amount remains subject to assessment.

5. The deed executed after the costs order, which purported retrospectively to add the corporate appellants as counsel’s clients, could not enlarge the respondents’ liability. Forde v Birmingham City Council [2009] 1 WLR 2732 was distinguishable because the replacement agreement there preceded the point when costs became payable.

1. Court of Appeal (Civil Division): The appellants’ second appeal was dismissed unanimously: [2018] EWCA Civ 119.

2. High Court, Queen’s Bench Division: Warby J dismissed the appellants’ appeal from the Costs Judge’s orders on 8 July 2016.

3. Costs assessment: Master Haworth held that the clients were not liable for the disputed solicitors’ or counsel’s fees, so those fees were irrecoverable from the respondents under the indemnity principle.