Retainer requirements

Question 1

Types -
P,
BAs
I
O,
C & Ds
Statutory

Answer 1

Types -
Private,
Business Agreements (CBA/Non-CBA),
Implied,
Oral,
CFAs, DBAs,
Statutory

Question 2

General
1. Governed by –
2. Must Satisfy –
3. JH Milner v Percy Bilton –

Answer 2

General
1. Governed by – Common Law and Statute
2. Must Satisfy – Basic elements of a contract (Offer, Acceptance, Intention, Consideration and agreement as to Terms)
3. JH Milner v Percy Bilton – No Retainer = No entitlement to charge

Question 3

Requirements – Implied, Oral, Writing
4. Groom v Crocker - Retainer can be
5. Parrot and Etchells - Leaving
6. Fladgate v Harrison – Can be
7. Griffiths v Evans – Not Written then
8. S.58 CLSA 1990 -

Answer 3

Requirements – Implied, Oral, Writing
4. Groom v Crocker - Retainer can be implied and doesn’t need to be in writing
5. Parrot and Etchells - Leaving files at an office may infer a retainer
6. Fladgate v Harrison – Can be Oral
7. Griffiths v Evans – Not Written – word of Client (preferred over word of solicitor)
8. S.58 CLSA 1990 - Statutory requirement for CFAs – inc. to be in writing

Question 4

Requirements – Implied, Oral, Writing
G P F G S

4. G v C -
5. P and E -
6. F v H –
7. G v E –
8. S.58

Answer 4

Requirements – Implied, Oral, Writing
4. Groom v Crocker - Retainer can be implied and doesn’t need to be in writing
5. Parrot and Etchells - Leaving files at an office may infer a retainer
6. Fladgate v Harrison – Can be Oral
7. Griffiths v Evans – Not Written – word of Client (preferred over word of solicitor)
8. S.58 CLSA 1990 - Statutory requirement for CFAs – inc. to be in writing

Question 5

Implied Terms
9. S. 13 SG&SA 1982 and S49(1) CRA 2015 - Implied Terms -
10. S.15 SG&SA 1982 and S51 CRA 2015 – Implied terms
11. S.14 SG&SA 1982 and S.52 CRA 2015 – Implied Terms
12. S. 57 (1) and (4) CRA 2015 – Cannot

Answer 5

Implied Terms
9. S. 13 SG&SA 1982 and S49(1) CRA 2015 - Implied Terms - quality of service/reasb care and skill (remember, case by case basis, that of a reasonably competent business in the same profession as the trader)
10. S.15 SG&SA 1982 and S51 CRA 2015 – must pay reasonable charge for service (applies, only if no charge has been fixed by parties.
11. S.14 SG&SA 1982 and S.52 CRA 2015 – reasonable timeframe (unless a time already fixed for performance of contract)
12. S. 57 (1) and (4) CRA 2015 – sol cannot limit or exclude liability for breach of duty and cannot impose a term that would prevent a negligence claim against them

Question 6

Written Retainers & Terms
13. Traditional Method
14. Other Methods –
15. SRA COC for Sols – Info in Writing
16. SRA Transparency Rules 2019 –

Answer 6

Written Retainers & Terms
13. Traditional Method – CCL – commonly include terms, scope of work to be done and how charged
14. Other Methods – inc. leaflet and electronically
15. SRA COC for Sols – Info in Writing – 8.3) Right to Complain 8.6) understandable information for informed decisions 8.7) best possible info on pricing
16. SRA Transparency Rules 2019 – . Make clear if client to make payment themselves (inc. out of damages). Some info must be available on website e.g. costs information under Rule 1 must be clear, accessible, prominent on website

Question 7

Influence & Negotiating
17. Re A Debtor –
18. Belsner v Cam (2020) –

Answer 7

Influence & Negotiating
17. Re A Debtor – No Undue Influence – to be enforceable
18. Belsner v Cam (2020) – on appeal found in negotiating contract of retainer, client could not reasb expect sols to act in client’s sole interests to exclusion of their own

Question 8

Costs Lawyers
19. Can enter -
20. Principle 1.6 CLSB CoC –
21. Cost Fees –

Answer 8

Costs Lawyers
19. Can enter - into contracts with lawyers and lay clients
20. Principle 1.6 CLSB CoC – Unlawful fee agreements - CLs must not enter
21. Cost Fees – historically based on fixed fee or %. Can now be CFA and DBA.