Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) and Others
| Jurisdiction | England & Wales |
| Judgment Date | 17 January 1997 |
| Date | 17 January 1997 |
| Court | Family Division |
Family Division
Before Mr Justice Wilson
Solicitors - fees to be paid from award - agreement not champertous or invalid
Where a wife, who was involved in protracted divorce proceedings, agreed to pay her solicitors' fees from the money she expected the court to award her, the agreement was not necessarily either champertous or invalid as contrary to public policy, but was a valid contract for valuable consideration to assign a future chose in action.
Mr Justice Wilson so held in the Family Division when, inter alia, dismissing an appeal from the order of District Judge Wigfield dated September 9, 1996 when he refused to set aside a garnishee order nisi made in favour of Payne Hicks Beach, solicitors, on the ground that the wife's prior assignment to Sears Tooth was champertous and contrary to public policy and therefore invalid.
Payne Hicks Beach had obtained the garnishee order in respect of fees left unpaid when the wife instructed Sears Tooth, solicitors, in her divorce action in place of Payne Hicks Beach. Sears Tooth had applied to have that order set aside on the basis of a deed whereby the wife had purported to assign to them her rights under any order in the ancillary proceedings in consideration of their provision of legal services.
Mr Jeffrey Burke, QC and Mr Philip Moser for Sears Tooth; Mr Mark Herbert, QC and Miss Tracy Angus for Payne Hicks Beach; Miss Elizabeth Lawson, QC, for the husband; Mr Christopher Wood for the wife.
MR JUSTICE WILSON said that what the deed purported to assign was a future chose in action. The wife had not assigned to Sears Tooth her right to claim ancillary relief but rather such part of her rights under the potential orders as would "settle any lawful claim for payment (Sears Tooth) might make against her".
Furthermore, an assignment of rights under an order for payment of a lump sum was valid because, unlike periodical payments, under section 31 of the Matrimonial Causes Act 1973 such orders could not be varied or discharged.
The assignment did not amount to a conditional fee agreement, which would have been unlawful by virtue of the exclusion of proceedings under the Matrimonial Causes Act 1973 from the ambit of section 58 of the Courts and Legal...
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Tl v Ml and Others (Ancillary Relief: Claim Against Assets of Extended Family)
...v Boustead [1897] 1 Ch 196, [1895–9] AIl ER Rep Ext 1911, CA. Sears Tooth (a firm) v Payne Hicks Beach (a firm) [1998] 1 FCR 231, [1997] 2 FLR 116. T, Re (27 March 1987, unreported), Tebbutt v Haynes [1981] 2 All ER 238, CA. Thomas v Thomas[1996] 2 FCR 544, [1995] 2 FLR 668, CA. X v X (Y in......
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...Act 2006). There are other exceptions which have been identified by the courts on public policy grounds. An example arose in Sears Tooth v Payne Hicks Beach [1997] 2 FLR 116 in the context of a spouse's rights following divorce whereby certain periodical payments are capable of being varied......
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...that she were to execute a charge in their favour upon whatever she might recover of the sort held to be lawful in Sears Tooth (A Firm) v Payne Hicks Beach (A Firm) [1997] 2 FLR 116. I disagree. In circumstances in which the wife already owed the solicitors about £88,000 for their work don......