Heather French v Carter Lemon Camerons LLP
| Jurisdiction | England & Wales |
| Judge | Mr Justice Morgan,Lord Justice Stanley Burnton,Lord Justice Lloyd |
| Judgment Date | 03 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1180 |
| Docket Number | Case No: A2/2011/3200 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 September 2012 |
[2012] EWCA Civ 1180
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MR BOWERS QC, SITTING AS A DEPUTY JUDGE OF THE HIGH COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lloyd
Lord Justice Stanley Burnton
and
Mr Justice Morgan
Case No: A2/2011/3200
Mr Joshua Munro (instructed by HMA Law) for the Appellant
Mr Seamus Smyth (of Carter Lemon Camerons LLP) for the Respondent
Hearing date : 23 July 2012
Introduction
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.
The case in outline
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.
The retainer
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 facts
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:
"Obviously if you have overlooked something then that needs to be rectified, but it is no solution for you to keep bullying me into submission or to continue making false accusations or inuendos (sic) against me. That only serves to undermine our solicitor/client relationship – where trust is paramount."
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...
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