Gill v Heer Manak Solicitors

A solicitor may terminate an ongoing retainer only for good reason and on reasonable notice, unless the retainer provides otherwise. Reasonableness is assessed objectively by balancing the interests of both solicitor and client. The assessment must address the client’s position, including litigation deadlines, the importance of representation and the consequences of being left without cover. A court cannot infer or assume material facts unsupported by evidence. Where a solicitor terminates without reasonable notice, the solicitor cannot rely on a contractual exception to the entire-obligation rule and cannot recover remuneration for work undertaken before completion or a natural break.

The appellant instructed the respondent solicitors to act in substantial litigation involving HMRC. The retainer required good reason and reasonable notice if the firm stopped acting. The firm closed its practice on 27 December 2013 and gave the appellant no advance notice, shortly before a scheduled trial and during a period containing important procedural deadlines.

Master Simons held that the firm was entitled to terminate the retainer, and Master Brown’s order gave effect to that decision. The appeal concerned only whether reasonable notice had been given. The central issue was whether termination without advance notice was reasonable on the evidence before the master.

1. Appeal allowed. The respondent was not entitled to terminate the retainer without notice and could not recover the fees claimed.
2. A solicitor’s retainer to conduct litigation is an entire obligation. Remuneration is generally recoverable only when the work has been completed or there has been a natural break, subject to a common-law exception and any agreement to the contrary. The contractual termination provision in this case embodied that exception: the firm could stop acting only with good reason and after giving reasonable notice. The principles in Underwood, Son & Piper v Lewis [1894] 2 QB 306 applied.
3. Whether notice is reasonable is an objective, fact-sensitive question. The court must consider and balance the interests of both parties. It is insufficient to consider only the solicitor’s commercial interests or the practical steps taken after termination.
4. The master erred in law by failing to consider the appellant’s position. The appellant was a student involved in substantial litigation, faced a tight timetable and was left without legal representation shortly before significant procedural steps and during the holiday period.
5. The master was also not entitled to make assumptions about the firm’s circumstances or ability to give notice when the firm had filed no relevant factual evidence. The absence of notice was not shown to be reasonable. The consequence was that the firm could not rely on the termination provision or claim the outstanding fees.

• High Court (Queen’s Bench Division): appeal from the order of Master Brown dated 29 September 2017, which recorded the resolution of preliminary points by Master Simons.
• Senior Costs Office: Master Simons delivered judgment on 27 January 2017 and held that the firm was entitled to terminate the retainer; Master Brown’s order gave effect to that decision.