Bell & Anor v Brabners LLP

A contractual provision allowing solicitors to exercise a lien for non-payment does not, without clear words, make that the client’s sole remedy or require the solicitors to continue acting. Statutory and common-law rights to terminate a retainer may coexist with express contractual provisions.

Similarly, terms identifying circumstances in which an agreement may be ended do not necessarily establish exclusive grounds for termination. A contractual duty to cooperate may include the core obligation to make payments on account. Permission to appeal requires a real prospect of success or some other compelling reason; arguments which do not meet that threshold will be refused.

The applicants, a solicitor’s client and her company, sought renewed permission to appeal from a preliminary-issue decision by District Judge Jenkinson in detailed costs assessment proceedings. The respondent former solicitors claimed payment under a conditional fee agreement.

The District Judge held that the retainer had been lawfully terminated on three bases: section 65(2) of the Solicitors Act 1974, repudiatory breach arising from non-payment on account, and the common-law right to terminate for a reasonable ground. Permission to appeal had been refused on paper by Johnson J. The central issue was whether the agreement’s lien provision and express responsibilities excluded those statutory and common-law grounds.

1. Application refused. The proposed appeal had no real prospect of success and there was no other compelling reason for it to be heard. The court agreed with Johnson J’s conclusion on the paper application.
2. The lien provision did not state that exercising a lien was the sole consequence of non-payment on account. Properly construed, it did not require the solicitors to continue acting. The contractual provision was compatible with the statutory right under section 65(2) of the Solicitors Act 1974 to withdraw from a retainer, on reasonable notice, where a client failed within a reasonable time to make a reasonable payment on account.
3. The statutory right under section 65(2) and the common-law entitlement to terminate on reasonable notice where there was a reasonable ground for refusing to act further could operate alongside the agreement. The court applied the principle stated by Dyson LJ in Richard Buxton (a firm) v Mills-Owens, [2010] EWCA Civ 122, [2010] 4 All ER 405.
4. The express responsibilities did not identify the exclusive grounds for termination. In any event, the obligation to cooperate had to be interpreted in the context of the agreement as a whole and included the core obligation to make payments on account. Non-payment therefore supplied an additional contractual basis for termination.
5. The objection that section 65(2) applied only to contentious business agreements was rejected. Part 3 of the Solicitors Act 1974, particularly section 64(1), distinguished contentious business from contentious business agreements. The contractual description of the agreement did not prevent reliance on section 65(2).
6. The reliance on Belsner v Cam Legal Services Ltd, [2020] EWHC 2755 (QB), did not create an arguable ground. That decision concerned non-disclosure and fiduciary duty, and its suggested analogy could not supply a sustainable point absent one arising from contractual construction, repudiatory breach, the common law or section 65(2). The point had also not been raised below or in the grounds of appeal.
7. Challenges concerning the reasonableness of the sum requested and notice under section 65(2) were not shown to have been argued below, lacked evidential support, and could not affect the result because other independent grounds supported termination.

1. High Court (Queen’s Bench Division): Renewed permission to appeal refused. The court held that the proposed appeal had no real prospect of success and that no other compelling reason justified a hearing.
2. District Judge Jenkinson: On a preliminary issue in detailed assessment proceedings, held that the respondent was entitled to terminate the retainer on three bases, including section 65(2) of the Solicitors Act 1974.
3. Johnson J: Permission to appeal was refused on the papers; the refusal was renewed before Fordham J.