Ismail and Another v Richards Butler (A Firm)
| Jurisdiction | England & Wales |
| Judgment Date | 16 February 1996 |
| Date | 16 February 1996 |
| Court | Queen's Bench Division |
Solicitor - Costs - Lien - Solicitors refusing to proceed with plaintiffs' instructions unless outstanding fees paid - Plaintiffs instructing new solicitors in pending litigation - Solicitors exercising lien over plaintiffs' papers in completed and pending matters - Whether solicitors discharging themselves - Whether plaintiffs to provide security as condition for solicitors delivering up papers -
The plaintiffs had for many years retained the defendant solicitors to act on their behalf in disputes arising from their import business. Their relationship broke down following a disagreement over the level of the defendants' fees. The plaintiffs instructed other solicitors in those cases which were still pending but the defendants refused to hand over the plaintiffs' papers unless outstanding fees of some £450,000 for completed and pending cases were paid. Subsequent negotiations failed and the defendants issued a writ seeking to recover their outstanding fees. The plaintiffs issued an originating summons seeking delivery up of their papers with final bills of costs to be taxed. On the hearing of the summons the master ordered that upon payment by the plaintiffs of a sum of £150,000 to the defendants and a further sum of £310,000 into court the defendants should deliver to the plaintiffs' solicitors all papers relating to the pending litigation.
On appeal by the plaintiffs: —
Held, varying the master's order, that the power of the court under R.S.C., Ord. 29, r. 6 to require a plaintiff to pay into court the whole amount claimed by the defendant in order to recover personal property subject to a lien did not replace the court's jurisdiction to grant relief in equity against the exercise of a solicitor's lien where the solicitor had discharged himself and the exercise of his lien would interfere with the course of justice; that where a solicitor terminated his retainer in respect of a pending case the client was normally entitled to an order that his papers be handed over to his new solicitor without security as to the former solicitor's outstanding fees, against an undertaking that the lien would be preserved, even where there existed a concurrent lien over those papers arising from concluded matters for which the solicitor had not been paid; and that, although the defendants had, on the evidence, terminated the retainer by requiring payment of outstanding costs as a condition of continuing to act, it was appropriate in the interests of justice in a case where the value of the lien to the defendants was likely to be considerably diminished if the papers were handed over and where no hardship would be caused to the plaintiffs, to order the defendants to deliver up the documents in the outstanding litigation on the plaintiffs providing security of £450,000 for the defendants' outstanding claim for costs (post, pp. 142B, 143D–E, G–H, 145C–H, 146F–H, 147G–H, 148C–E).
The following cases are referred to in the judgment:
A v. B [
Colegrave v. Manley (
Faithfull, In re; In re London, Brighton and South Coast Railway Co. (
Galland, In re (
Gamlen Chemical Co. (U.K.) Ltd. v. Rochem Ltd. [
Gebruder Naf v. Ploton (
Heslop v. Metcalfe (
Hughes v. Hughes [1958] P. 224; [
Robins v. Goldingham (
Segbedzi v. Glah (unreported), 3 July 1989; Court of Appeal (Civil Division) Transcript No. 658 of 1989,
The following additional case was cited in argument:
Lord v. Wormleighton (
APPEAL from Master Pollard.
The plaintiffs, Dr. Fawzi Ahmed Abou Ismail and Aratra Potato Co. Ltd., brought proceedings by way of originating summons against the defendant solicitors, Richards Butler, seeking an order that the defendants deliver up all the plaintiffs' papers in their possession with final bills of costs to be taxed. On 9 January 1996 Master Pollard ordered that, upon the plaintiffs making payment to the defendants in the sum of £150,000 with a further sum of £310,000 to be paid into court, the defendants should deliver up to the plaintiffs' solicitors all papers in their possession relating to six matters which were pending litigation. Master Pollard stayed the order pending agreement that there would be no appeal or until further order of the court.
The plaintiffs sought to have the order set aside.
The appeal was heard in chambers but judgment was given by Moore-Bick J. in open court.
The facts are stated in the judgment.
Robert Deacon for the plaintiffs.
Graham Charkham for the defendants.
16 February. MOORE-BICK J. handed down the following judgment. This matter comes before the court by way of an appeal by the plaintiffs against an order of Master Pollard made on 9 January 1996 whereby he ordered that upon payment by the plaintiffs within four days of the sum of £150,000 to the defendants and a further sum of £310,000 into court the defendants should deliver to the plaintiffs' solicitors all papers belonging to the plaintiffs relating to six matters mentioned in the order. He also directed that the order should be stayed until agreement that there should be no appeal or until further order of the court. That order was made on a summons issued by plaintiffs in proceedings begun by originating summons in which they claim delivery up of all papers belonging to them in the possession of the defendants, the delivery of final bills of costs and an order for taxation of those bills under the
The plaintiffs, Dr. Ismail and Aratra Potato Co., are well known importers into the United Kingdom of new potatoes from Egypt. In the course of that business they have from time to time inevitably become involved in disputes with shippers, shipowners, hauliers and others involved in the carriage and handling of the potatoes. Many of these disputes have led to litigation. For many years the plaintiffs instructed Richards Butler to act on their behalf in connection with these disputes. For convenience I shall refer throughout to Dr. Ismail and Aratra Potato Co. together as the plaintiffs, without prejudice to the dispute which I understand exists between Dr. Ismail and Richards Butler concerning his personal position. The relationship between them appears to have originated in contacts between Dr. Ismail and Mr. Elmslie, who was then a partner in Richards Butler; certainly Dr. Ismail appears to have had particular confidence in Mr. Elmslie, which no doubt fostered by his handling the plaintiffs' affairs over many years. Apart from a brief interlude between 1988 and 1992 Mr. Elmslie and Richards Butler continued to act for the plaintiffs until the autumn of 1995 when their relationship came to an end in circumstances which I shall have to deal with in more detail in a moment. First, however, it is necessary to say something more about the arrangements that were made between them in 1992 when the plaintiffs decided to return to instructing Richards Butler as their London solicitors.
The plaintiffs resumed their relationship with Richards Butler in about February 1992. By then Mr. Elmslie had become senior partner. At that stage, the plaintiffs say, it was agreed that the previous billing arrangement would apply, namely, that Mr. Elmslie would charge a maximum of £175 per hour for work which he carried out and that Richards Butler would bill the plaintiffs only when cases were concluded by judgment or settlement. That arrangement does not appear to have been reduced to writing, but it is common ground that it was superseded shortly thereafter and nothing turns on it as far as this application is concerned. Mr. Elmslie retired as senior partner of Richards Butler in April 1992, but before he did so he suggested that he should continue to handle the plaintiffs' work, but at a much reduced hourly rate payable on a monthly basis. According to Dr. Ismail there was a meeting on 5 June 1992 between himself, Mr. Elmslie, Mr. Bush (then a partner in Richards Butler) and Mr. Cock (an assistant solicitor) at which it was agreed that Richards Butler would continue to act for the plaintiffs after Mr. Elmslie's retirement but on the basis that most of the work would be done by Mr. Elmslie, with Mr. Bush and Mr. Cock undertaking a supporting and administrative role. He says that it was agreed on that occasion that Mr. Bush would charge a maximum of £175 per hour, Mr. Cock a maximum of £90 per hour and Mr. Elmslie £40 per hour. Dr. Ismail also says that it was agreed that in addition to billing the plaintiffs at the end of each case Richards Butler would render interim bills annually at the end of August or beginning of September. That some terms were agreed at about that time between Dr. Ismail, Mr. Elmslie and Mr. Bush is not in dispute, but Richards Butler do not accept that the terms were as Dr. Ismail says. In particular, they deny that there was any agreement as to the rates which would be charged in respect of work carried out by Mr. Bush and Mr. Cock. Again, it appears that that agreement was never reduced to writing.
Some time later (the precise date does not matter) Mr. Bush gave notice to retire from Richards Butler and did so with effect from 30 April 1994. Mr. Cock left Richards Butler at about the same time. In February 1994, therefore, another of Richards Butler's partners, Mr. Francies, was introduced to Dr...
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