French v Carter Lemon Camerons LLP

At the end of the argument, we announced that this appeal would be dismissed for reasons to be given later. This judgment sets out my reasons for concluding that the appeal should be dismissed.

In March 2010, Ms French retained Carter Lemon Camerons LLP (“the solicitors”) to act for her in connection with ongoing litigation she had brought against an insurance company (“the insurance litigation”). In May 2010, in circumstances which need to be examined in detail later in this judgment, Ms French ceased to be the client of the solicitors, whereupon she became a litigant in person in the insurance litigation. The solicitors asserted a lien, in respect of what they said were fees outstanding from Ms French, over Ms French’s documents which they had in their possession in connection with the insurance litigation.

On 17^th June 2010, Ms French applied for an order that the solicitors release to her the documents which had been detained by them. That application was heard and dismissed by Master Foster on 4^th August 2010 when he ordered Ms French to pay the solicitors’ costs of the application, summarily assessed at £8,000. The Master’s reasoning was as follows. He held that the solicitors were entitled to be paid for acting for Ms French. They therefore had a lien over her documents in respect of unpaid fees. He considered that Ms French had terminated the retainer but, in any event, the relationship of trust between the solicitors and Ms French had broken down and either the retainer was terminated by Ms French or, alternatively, the solicitors were entitled to treat the retainer as having been terminated by virtue of the breakdown of trust.

Ms French appealed with permission granted by Kenneth Parker J and her appeal was heard and dismissed on 18^th November 2011 by Mr Bowers QC, sitting as a judge of the High Court, when he ordered Ms French to pay the solicitors’ costs of the appeal assessed at £10,000. The Deputy Judge directed himself that the issue was whether the retainer had been terminated improperly. He held that either Ms French had terminated the retainer by making complaints about the solicitors or the solicitors had terminated the retainer by giving reasonable notice. He commented that there had been a wholesale breakdown in the relationship between Ms French and the solicitors. He further held that the retainer had been terminated regularly by the solicitors and he rejected Ms French’s submission that the solicitors were not entitled to any fees. The Deputy Judge therefore held that the solicitors were entitled to be paid their fees and could assert a lien over Ms French’s documents in respect of unpaid fees. His analysis of the position did not distinguish between a case where Ms French terminated the retainer and a case where the solicitors terminated the retainer.

On 9^th January 2012, Ward LJ granted Ms French permission to appeal against the decision of the Deputy Judge.

Although Ms French had represented herself at the hearings before the Master and the Deputy Judge, she was represented on this appeal by Mr Munro of counsel. Mr Smyth, the senior partner of the solicitors, appeared on the appeal on their behalf and, indeed, he had also appeared at the hearings before the Master and the Deputy Judge.

In this judgment, I will first refer to the terms of Ms French’s retainer of the solicitors. I will then turn to the detailed facts, including those relating to the termination of the retainer. I will then summarise the legal principles which apply, both as to a solicitor’s entitlement to his fees when the retainer is terminated and as to a solicitor’s right to a retaining lien. Finally, I will address the submissions which have been made on this appeal.

Ms French formally retained the solicitors in March 2010. The terms of the retainer were recorded in a number of letters dated 9^th March 2010, from the solicitors to Ms French, which letters she counter-signed a few days later. The solicitors were retained pursuant to a conditional fee agreement which provided for a success fee. The terms of the retainer referred to the responsibilities of the solicitors and the responsibilities of Ms French as client. The latter responsibilities were expressed to include an obligation on her part to give instructions that allowed the solicitors to do their work properly and to co-operate with the solicitors.

Ms French was entitled to terminate the retainer at any time. In that event, the solicitors were entitled to charge certain fees as specified in the retainer. The terms of the retainer further provided that the solicitors were entitled to terminate the retainer if Ms French did not keep to her responsibilities. In the event of such a termination, the solicitors were said to be entitled to charge certain fees as specified in the retainer. The retainer also referred to the solicitors’ entitlement to assert a lien for unpaid fees. At a later point in the letters recording the retainer, the solicitors stated that they would decide to stop acting for Ms French “only with good reason and on giving you reasonable notice”. That statement was plainly derived from paragraph 2.01(2) of the then current version (the 2007 version) of the Code of Conduct issued by the Solicitors Regulation Authority. The Code of Conduct included guidance as to its interpretation. Paragraph 8 of the guidance stated that examples of “good reasons” included where there was a breakdown in confidence between the solicitors and the client and where the solicitors were unable to obtain proper instructions.

The background to Ms French’s retainer of the solicitors was that Ms French had retained in the insurance litigation, and then apparently discharged, an earlier firm of solicitors, Lorrells Georgiou Nicholas LLP (“Lorrells”). That firm had asserted a lien over Ms French’s documents in relation to allegedly unpaid fees. That matter was resolved by Lorrells releasing the documents to the new solicitors (i.e. Carter Lemon Camerons LLP) in return for Ms French agreeing to grant Lorrells a charge over a property which she owned and the new solicitors undertaking (on 9^th February 2010) to preserve Lorrells’ lien over the documents released by Lorrells.

I can pick up the communications between Ms French and the solicitors with an email which Ms French sent to Ms Monk (the partner acting for her at the solicitors) early in the day on 13^th May 2010. It is not necessary to go into the background as to the matters which were then being considered in relation to the insurance litigation. In her email, Ms French wrote that she was very concerned about Ms Monk’s handling of the matter. Ms French was highly critical of Ms Monk’s conduct; she referred to Ms Monk’s failure to keep her informed, ignoring information and dismissing correspondence that Ms French had carefully sent to her. Ms French added:

During the course of 13^th May 2010, Mr Smyth the senior partner of the solicitors was shown Ms French’s email of earlier that day. He telephoned Ms French and they arranged to meet at the solicitors’ offices later that day. The meeting duly took place. An assistant solicitor also joined the meeting for the purpose of taking a detailed note of the discussion and we have been shown that note. The meeting was evidently a lengthy one and the note extends to over 6 closely-typed pages. Much of the note is highly material to the issues before the court but it is not appropriate to set out the note in its entirety. I will attempt to summarise the main points as they appear from the note.

Mr Smyth immediately raised with Ms French her email of earlier that day. He said that it was a complaint against the firm. He described his reaction to the existence of a complaint in different ways at different times during the meeting. At a number of points, he commented that the solicitors could not continue to act if the complaint were to be pursued; that possibly left open the prospect that if the complaint were withdrawn then the solicitors could continue to act. At other times, Mr Smyth said with varying degrees of clarity that as a complaint had been made and/or as the trust between solicitor and client had broken down, the solicitors could not continue to act; that appeared to be a statement that the solicitors would not continue to act. There was some discussion as to whether Ms French was disinstructing the solicitors. She made it clear that she was not doing so and that if they withdrew from the case, then it was her view they were disinstructing themselves. There was disagreement as to whether Ms French would be entitled to recover her files from the solicitors; Mr Smyth asserted that the solicitors would be entitled to retain the files until certain fees were paid. The second half of the meeting continued under a time constraint. Mr Smyth told Ms French that he had an appointment elsewhere and needed to bring the meeting to a close. Notwithstanding that comment, the meeting continued for an appreciable time thereafter. Ms French and Mr Smyth discussed the fact that there was a case management conference (a “CMC”) in the insurance litigation due to take place the following day before the Master. Ms French suggested that the solicitors should attend the CMC on her behalf and then talk about the problems. Mr Smyth inquired whether Ms French would withdraw her complaint until the CMC had been dealt with and Ms French confirmed that she was prepared to do this. The possibility of the solicitors representing Ms French at the CMC was further discussed and different expressions were used as to the basis on which that was to happen. Mr Smyth suggested that Ms French should write withdrawing her complaint and asking the solicitors to continue to deal with the CMC. He asked Ms French if she wanted the solicitors to carry on and she said that she did. Mr Smyth said “that he was trying to construct a way in which properly we could continue to act at least until the CMC”. He asked if Ms French wanted the solicitors to appear at the CMC; Ms French confirmed that she did. Mr Smyth left matters on the stated basis that Ms French wanted the solicitors to attend the CMC and that in the circumstances the only reason why the solicitors might be excused from ceasing to act for Ms French was the proximity of the CMC. The meeting then ended.

In the evening of 13^th May 2010 and in the morning of 14^th May 2010, there were further email communications, in particular between Ms French and Ms Monk.

In the morning of 14^th May 2010, before the CMC which was due to take place at 2.00 pm on that day, Mr Smyth wrote to Ms French (the letter being sent by email). He referred to Ms French’s complaint against the solicitors and the meeting which had taken place. He then stated:

The CMC duly took place at 2.00 pm on 14^th May 2010 when Master Foster gave directions for the future conduct of the insurance litigation.

On 18^th May 2010, a Mr Newth, a consultant with the solicitors, wrote to Ms French. He explained that he was a former partner of the firm and he had been appointed by the solicitors to investigate Ms French’s complaint. He asked Ms French to arrange an appointment with him to discuss the complaint.

Ms French emailed her reply to Mr Newth on 20^th May 2010. She described the history of the matter. She wrote to Mr Newth that she did not know what the current situation was; that appeared to be a reference principally to Mr Newth’s involvement in the matter. She asked to be told the purpose of a meeting with Mr Newth. She added:

Mr Newth replied to Ms French by email on 20^th May 2010. He explained that he wished to meet Ms French because he did not want her to be involved in a complaints procedure unnecessarily nor in a way which might prejudice her interests in the insurance litigation. He explained that he was not involved in those proceedings. He added:

On 24^th May 2010, Ms French emailed her reply to Mr Newth’s email of 20^th May 2010. She explained that she had taken time carefully to review his comments. She said that she had not previously made a formal complaint but now she felt she had reason to make one. She then identified in considerable detail her criticisms of Ms Monk and of the solicitors generally. She referred to Mr Smyth “threatening” to drop the case. She then added:

On 24^th May 2010, Mr Newth replied to Ms French. He referred to the fact that the solicitors were continuing to act in the insurance litigation. He commented on the serious nature of the allegations made in Ms French’s email of 24^th May 2010. He provided her with information about the solicitors’ complaints procedure. He stated that if she stood by the contents of her email, then he was worried that such lack of confidence and evident distrust would make it impractical, and not in her interests, for the solicitors to be continuing to act for her. He asked Ms French to let him know if this was wrong.

Ms French replied to Mr Newth on 26^th May 2010. She described Mr Newth’s position as being:

On 26^th May 2010, Mr Newth replied to Ms French. He explained that notwithstanding Ms French’s complaint, the solicitors had continued to represent her and to act in the insurance litigation on her behalf. He stated that he felt it inconceivable that a firm of solicitors could continue to represent a client’s best interests while defending itself against allegations and a claim to damages from a client. He explained that where allegations, such as those made by Ms French, gave rise to a conflict of interest, the Solicitors Rules of Conduct required a firm to give reasonable notice that it would cease to act.

On 28^th May 2010, Ms French wrote directly to Master Foster, the Master who was dealing with the insurance litigation. She explained that she was acting as a litigant in person and she enclosed a notice of change of solicitor recording that the solicitors had ceased to act for her and that she was now acting in person.

Later on 28^th May 2010, the solicitors emailed to Ms French a copy letter from Mr Smyth responding to the allegations of misconduct and negligence which Ms French had identified in her email of 24^th May 2010 to Mr Newth. Mr Smyth stated that the effect of Ms French’s email of 24^th May 2010 was the termination by her of the solicitors’ retainer. He went on to say that quite apart from her termination of the retainer, the solicitors would no longer be able to continue to act for her by reason of the Solicitors’ Conduct Rules and therefore, on any basis, the retainer was terminated. As to Ms French’s request for the return of her files, Mr Smyth stated that the solicitors had given an undertaking to Lorrells to safeguard Lorrells’ lien and that the solicitors would not be able to hand over the files to Ms French, as distinct from new solicitors acting on her behalf. In any event, the solicitors stated that they were entitled to exercise a lien in respect of their unpaid fees and an invoice was enclosed. The solicitors also suggested that it might be possible to release the lien if suitable security and undertakings were provided.

As explained above, the retainer spelt out the rights of each party to terminate the retainer and the solicitors’ entitlement to be paid their fees in the event of termination. Mr Munro submitted that if the solicitors purported to terminate the retainer at a time, or in circumstances, where they were not contractually entitled to terminate it, that conduct would amount to a repudiation of the retainer and if Ms French accepted that repudiation as terminating the retainer, then the retainer would come to an end. Because such a retainer is an entire contract, the solicitors would not be entitled to be paid any sum for work done by way of part performance only of the retainer. He relied upon the decision in Richard Buxton v Mills-Owen [2010] 1 WLR 1997, following the earlier case of Underwood, Son & Piper v Lewis [1894] 2 QB 306 as authority for the proposition that the retainer in the present case was an entire contract. That proposition was not disputed by the solicitors.

There was also no dispute as to the legal principles which apply as to the circumstances in which a solicitor may assert a retaining lien over his client’s documents which have been provided to the solicitor in the course of litigation, which is continuing at the time at which the retainer is terminated. The law is conveniently summarised in Halsbury’s Laws of England, 5^th ed., vol. 66 at paragraph 1003 where it is stated:

Mr Munro cited Gamlen Chemical Ltd v Rochem Ltd [1980] 1 WLR 614 for the principles which apply in a case where the solicitors’ retainer is terminated in the course of continuing litigation. The principles identified in that decision are summarised in the quoted passage from Halsbury’s Laws. In Gamlen, at page 624E-F, Templeman LJ explained why the normal response of the court, when faced with a solicitor who has discharged himself in the course of litigation, even where the solicitor is entitled to discharge himself, is to order the solicitor to hand over the client’s papers to the client’s new solicitors, subject to an undertaking from the new solicitors to preserve the lien of the original solicitor. This course is usually adopted “in order to save the client’s litigation from catastrophe”.

Mr Munro makes two principal submissions in support of the appeal. First, he submits that the solicitors purported to terminate the retainer in circumstances where they were not entitled so to do; that amounted to a repudiation of the retainer which Ms French accepted as bringing the retainer to an end. Because the retainer was an entire contract, terminated in that way, the solicitors were not entitled to be paid any fees. Accordingly, they could not assert any lien in respect of unpaid fees because no fees were payable. Secondly, in the alternative, if the solicitors were entitled to unpaid fees following the termination of the retainer, they were not entitled to assert a lien so as to prevent the papers being passed to new solicitors for Ms French, or even Ms French herself acting as a litigant in person, in relation to the ongoing insurance litigation. That was because the retainer had come to an end by reason of the solicitors discharging themselves.

The solicitors’ response to these two arguments was to contend, first, that they did not repudiate the retainer and the retainer did not come to an end by reason of any acceptance by Ms French of any such repudiation. Instead, the retainer was terminated by Ms French. She was entitled to act in that way but the solicitors remained entitled to be paid their fees and to assert a lien over Ms French’s documents so that they were not obliged to hand those documents over to any new solicitors instructed by Ms French nor to Ms French as a litigant in person.

The passage quoted from Halsbury’s Laws shows that there are some circumstances where a client discharges a solicitor but where the solicitor is not entitled to keep the papers from the client’s new solicitor. This is where the client discharges the solicitor for “misconduct”. Although Mr Munro submitted that the solicitors had repudiated the retainer, he did not (if he were to fail on that point and if it were held instead that Ms French discharged the solicitors) argue in the alternative that this was a case of “misconduct” by the solicitors. Accordingly, we did not hear any submissions as to what is meant by misconduct in this context and I do not need to deal with that matter in this judgment.

Paragraph 1003 of Halsbury’s Laws, 5^th Ed, vol. 66 contains a footnote to the effect that even where the solicitor discharges himself, the court retains a discretion not to order the solicitor to hand over the client’s papers to the new solicitors. The nature of that discretion was discussed by Templeman LJ in Gamlen at page 624H-625B where he refers to “exceptional cases”. It was not argued by the solicitors in the present case that we should regard this case as an exceptional case.

Accordingly, two points only need to be addressed, namely, the two ways in which Mr Munro has put the case for Ms French. Both of these points turn upon the detail of the communications between the parties at the relevant time.

Mr Munro submitted that the solicitors, in breach of contract, refused to continue acting for Ms French; he said that this conduct amounted to a repudiation of the contract and that upon Ms French’s acceptance of that repudiation, the retainer was thereby terminated. Mr Munro submitted that the repudiatory conduct consisted of the statements made by Mr Smyth at the meeting with Ms French on 13^th May 2010.

I have summarised the note of the meeting of 13^th May 2010. Mr Smyth made various statements during that meeting. Some of the statements stopped short of saying that the solicitors would no longer act for Ms French. Other statements taken in isolation did involve the solicitors saying they would no longer act. However, during that meeting Ms French did not accept that the retainer had come to an end. She made it clear that she did not wish the solicitors to cease acting for her. In any event, at the end of the meeting it was clear that the solicitors had not ceased to act for Ms French. In my judgment, what matters is how matters were left at the end of the meeting rather than the various statements, not all of them clear, which were made during the meeting.

Mr Munro accepts that at the end of the meeting, the solicitors were still (to some extent) instructed on behalf of Ms French. He has to accept that those instructions extended to, or included, the solicitors appearing for Ms French at the CMC which was to take place the next day. Mr Munro submits that the right analysis of the arrangements made at the meeting on 13^th May 2010 was that the retainer was terminated by the solicitors during the meeting as a result of their repudiatory breach being accepted by Ms French and then following that termination, the parties agreed upon a very limited further retainer which extended only to the solicitors acting for Ms French at the CMC the following day, and did not extend any further than that.

I am not able to accept Mr Munro’s submission as to the analysis of the meeting of 13^th May 2010. I do not consider that there ever came a point during the meeting when the original retainer was terminated. Further, even if the original retainer had been terminated, I am unable to accept that the retainer which extended to the solicitors acting for Ms French at the CMC the following day was restricted to that single piece of work and no more. At the meeting on 13^th May 2010, Mr Smyth referring to the solicitors continuing to act “at least until the CMC”. That is inconsistent with there being a clear agreement that there was a further retainer which would automatically end immediately following the appearance at the CMC.

It may be that the position was not spelt out as clearly as it might have been at the meeting on 13^th May 2010, possibly because Mr Smyth was in a hurry to get away. However, on the morning of the 14^th May 2010, with a view to making the position clear before the CMC, Mr Smyth wrote to Ms French stating that any decision as to continuation or termination of the retainer was “deferred”. I consider that his letter was inconsistent with the parties having agreed that the continuing retainer, which would allow the solicitors to appear at the CMC, would automatically end as soon as the CMC was over.

This interpretation of the situation on the 13^th and 14^th May 2010 is consistent with the communications between the parties after 14^th May 2010. It may be right not to place too much reliance on Mr Newth’s references to the solicitors continuing to act for Ms French because Mr Newth was not involved in the litigation but was instead appointed to deal with what the solicitors regarded as a complaint, which required to be dealt with under their complaints procedure. Nonetheless, there is nothing in Mr Newth’s comments which assists Ms French’s argument of a limited retainer which ended immediately following the CMC. Further, Ms French’s own comments after 14^th May 2010 are inconsistent with an agreement that the retainer was to end immediately following the CMC.

Accordingly, I reject Mr Munro’s suggestion of a termination of the retainer on the 13^th May 2010 followed by a further retainer which ended immediately following the CMC. If Mr Munro’s suggestion had been compatible with the facts, then other issues would have arisen. His submission depends upon a finding that the solicitors would have been in breach of contract by terminating the retainer on 13^th May 2010. That submission is not obviously right and there is a strong argument that it is wrong; it can be said that the solicitors were contractually entitled to terminate the retainer in view of the complaints made by Ms French on 13^th May 2010. However, I do not need to pursue that possibility any further. There might have been a further difficulty with Mr Munro’s suggestion, at any rate so far as Ms French’s application for an order for the return of her files was concerned. If the solicitors were the subject of a fresh retainer which allowed them to charge a fee for attendance at the CMC, then a question would arise as to whether they were entitled to exercise a lien over the files in respect of, at least, that fee when the retainer automatically terminated following the CMC.

In the course of the hearing, Mr Munro put his case as to the termination of the retainer in other ways. He submitted that if the solicitors did not terminate the retainer with immediate effect at the meeting on 13^th May 2010, their statements at the meeting should be interpreted as being, in effect, a notice to terminate the retainer which would take effect immediately following the CMC. Mr Munro would argue that giving such a notice was a breach of contract which Ms French accepted and thereby the retainer came to an end immediately following the CMC. Quite apart from the difficulty in finding that Ms French accepted any such breach as terminating the retainer, I do not consider that the solicitors’ statements on 13^th May 2010 amounted to a notice to take effect at a fixed time in the future. What the solicitors said on 13^th May 2010, and made more clear in the letter of 14^th May 2010, was that a decision on whether the retainer continued or was terminated was deferred.

Mr Munro further submitted, in the course of the hearing, that the true analysis was that the solicitors had repudiated the contract at the meeting on 13^th May 2010, that Ms French had not immediately accepted that repudiation as terminating the contract but that on 24^th May 2010, while the repudiation was still current and without any intermediate affirmation of the contract, Ms French then accepted the repudiation as terminating the retainer. Mr Munro submitted that Ms French’s email of 24^th May 2010 was a clear statement accepting that the retainer was at an end and that sufficed as an acceptance of the repudiatory conduct of the solicitors. I am not able to accept that analysis of the position largely for the reasons already given. I am unable to hold that the solicitors’ statements on and after 13^th May 2010 and up to 24^th May 2010 amounted to a purported termination of the retainer. In any event, if the solicitors had purported to terminate the retainer, then there would remain the question which I mentioned inconclusively earlier as to whether the solicitors were entitled to terminate the retainer so that their decision to do so was not a repudiatory breach of contract.

I have now considered the various ways in which Mr Munro has argued that the retainer was repudiated by the solicitors so as to produce the result that they are not entitled to be paid any fees. For the reasons I have given, I do not accept any of those arguments.

It is common ground that the retainer had come to an end by 28^th May 2010, at the latest. It is therefore necessary to consider how it came to an end and then to decide whether this was a case of the client discharging the solicitors or the solicitors discharging themselves. As explained earlier, the answer to that question has an important bearing on whether the solicitors were entitled to assert a lien over Ms French’s documents in relation to their unpaid fees.

In my judgment, the retainer continued on the 13^th and 14^th May 2010 and indeed thereafter. The first possible termination of the retainer was in Ms French’s email of 24^th May 2010. There are parts of that email which appear clearly to state that Ms French is terminating the solicitors’ retainer. I have in mind the severity of her criticisms of the solicitors, her statement that the solicitors left her with no choice and her suggestion that the solicitors send the files to her so that she could continue on her own. I have considered whether other parts of the email could be regarded as keeping the door open so that the email as a whole stopped short of a final break with the solicitors. I have in mind her statement that “perhaps” it would be in “both parties’ interests” if she acted in person, her reference to an attempt to remove the charge in favour of Lorrells (where she seemed to suggest that the solicitors would be involved in that attempt) and possibly even the last line of her email where she plainly expected the solicitors to make a response to her email. On the whole, I am satisfied that the email does amount to a sufficiently clear termination of the solicitors’ retainer. Her statement that “perhaps” it was in “both parties’ interests” for her to act in person did not in the end prevent her from deciding what was in her own interests, which was to terminate the retainer; that decision is reflected in her later request for her files so that she could act in person. Further, the overall sense of the email is not really affected by a somewhat passing comment about attempting to remove the charge in favour of Lorrells. Further, her expectation that the solicitors would reply to her email is in truth neutral; after all, she had made statements which needed to be answered and requests, for example, for compensation which she was expecting the solicitors would need to deal with. I also bear in mind that Mr Munro submitted that this email was an unequivocal ending of the retainer, although he put it on the basis that Ms French was accepting an earlier alleged repudiation by the solicitors. Further, when Ms French wrote to Mr Newth on 26^th May 2010, she was plainly saying that the retainer was definitely at an end although she tried to argue that it was the solicitors and not she who had terminated it.

The result is that the retainer in this case came to an end on 24^th May 2010 when Ms French terminated it. In those circumstances, in accordance with the established authorities as to a solicitor’s retaining lien, the solicitors were entitled to assert such a lien over Ms French’s documents in relation to their unpaid fees.

It follows that the Master was right to dismiss Ms French’s application for the release of the documents and that the Deputy Judge was right to dismiss the appeal from the Master, although my reasons are not in all respects the same as those relied upon by the Deputy Judge.

I agree.

I also agree.