Retainers

Question 1

7 types of retainer

Answer 1

1. Private retainers.
2. Business Agreements (contentious or Non-Contentious).
3. Implied Retainers.
4. Oral Retainers.
5. Conditional Fee Agreements.
6. Damages Based Agreements.
7. Statutory Retainers.

Question 2

What form can retainers take?

Answer 2

Oral, written, conduct

Question 3

Formation of a retainer through conduct

Answer 3

Groom v Crocker [1939]

Question 4

Name and discuss two parts of the SRA Code of Conduct (2011) that govern retainers

Answer 4

Chapter 1 (Client care)

Indicative Behaviour 1.3 states that the client should be told in
writing the name and status of the people dealing with the case and whoever is responsible for the supervision.

Indicative Behaviour 1.14 requires that a Solicitor clearly explains their fees and if and when they are likely
to charge.

Question 5

What are 3 sections of the Supply of Goods and Services Act 1982 which regulate retainers?

Answer 5

Section 13 of the Supply of Goods and Services Act 1982 implies a term into a contract regarding service; that
the service must be carried out with reasonable care and skill.

Section 14 of the Supply of Goods and Services Act 1982 implies a term into a contract regarding time, the service
must be undertaken with reasonable time.

Section 15

Question 6

With reference to relevant paragraphs what is the SRA code for firms in relation to service to their clients?

Answer 6

Para 8.7 of the SRA Code of Conduct for
Solicitors, RELs and RFLs

Para 8.6 of the SRA Code of Conduct for
Solicitors, RELs and RFLs

Question 7

Can you name reasons the client can terminate a retainer?

Answer 7

Any time for any cause, but namely:
1. Effluxion of Time
2. Death
3. Bankruptcy
4. Insanity
5. Unlawful

Question 8

When can a Solicitor terminate a retainer with Case Law in support

Answer 8

‘Prejudice the claim’

A solicitor can only stop acting for a client with good reason or good cause and on reasonable notice, or with
the client’s consent.

The client’s refusal or failure to pay within reasonable time and without reasonable justification was good cause to withdraw from the retainer on giving reasonable notice; Cawdery Kaye Fireman & Taylor v Minkin [2012] EWCA Civ 546.

A client advancing a hopeless case against advice was good reason, upon reasonable notice, to terminate the retainer; Richard Buxton (Solicitors) v Huw Llewelyn Paul Mills-Owens and the Law Society (Intervener) [2010] EWCA Civ 122.

Question 9

What is needed to make a retainer?

Answer 9

Offer, consideration, binding, intention, acceptance

Question 10

CFA- what is it?

Answer 10

No win no fee agreement.

A conditional fee agreement (CFA) is a financial arrangement between a client and their solicitor where the client only pays the solicitor if they win their case.

As a CFA gives a lawyer a financial interest in the case, your lawyer will have greater control over the overall strategy and resolution of the litigation.

Question 11

ATE insurance

Answer 11

Unless you purchase ATE to cover your opponent’s costs you still risk being liable to pay their costs if the litigation is unsuccessful.

ATE is £375 plus IPT here

Question 12

LASPO

Answer 12

On 1 April 2013 the legal landscape changed dramatically for those wanting to use CFAs to fund cases.

Before 1 April 2013 CFA success fee - and the ATE premium -were recoverable from the opponent if the case was successful.

From 1 April 2013, CFA success fees – and ATEs - would no longer be recoverable from the losing opponent if the case was successful.

Parties could still enter into CFAs - and take out ATE insurance - to fund their litigation, but would have to bear the additional costs of doing so i.e. would have to pay the success fee or alternative damage compensation, and won’t get ATE recovered.

Question 13

Uplift success fees

Answer 13

Percentage of basic costs charged by some solicitors as a form of compensation plus any unrecovered costs

100% if goes to court, otherwise 50% for HDR and 25% for negligence

Question 14

Up to 25% of damages compensation alternative

Answer 14

First legal instead ask for 25% of damages up to the point of indemnity

Allows better access to justice/more clients so losses even out

Question 15

Indemnity principle

Answer 15

The client will never pay more than they would have had to pay should they have paid success fees and basic costs.

Gempride v Jagjit Bamrah & Law Lords of London Limited [2018] EWCA CIV 1367

Question 16

LEI/BEI

Answer 16

Before event insurance

Question 17

Civil Procedure Rules

Answer 17

Require sols to inform clients about costs and documents

Question 18

SRA Code of Conduct 2011

Answer 18

Arguably a statute duty under the Legal Services Act 2007 to comply with its rules

Question 19

BSB Handbook

Answer 19

Bar standards handbook for barristers that must be complied with

Question 20

Case law on professional obligations

Answer 20

Leigh v Michelenn Tyres- an estimate of costs
Reynolds v Stone Rowe Brewer- professional obligation to provide accurate costs

Question 21

The effect of termination

Answer 21

Termination does not free you of your obligations or of the relationship

Question 22

Changes to a retainer

Answer 22

Communicated with the client, CFA cannot be backdated but can be retrospective as in Birmingham City Council v Rose Forde. Dated from the day entered into but can relate to an earlier date.

Question 23

J H Milner & Son v Percy Bilton Ltd [1966] 1 WLR 1985

Answer 23

No retainer, no charge

Question 24

Retainer in writing

Answer 24

A Conditional Fee Agreement must be in writing
S8(3) Courts and Legal Services Act 1990

Question 25

Retainer by conduct

Answer 25

Groom v Crocker [1939]
Parrot v Etchells [1839]

Question 26

Bar Standards Board: Code of Conduct- which paragraphs apply?

Answer 26

oC10
oC11
oC12
oC13
oC14
oC18

Question 27

SRA code for firms- which paragraphs apply?

Answer 27

Para 2.1
Para 2.2
Para 4.1
Para 4.2
Para 6.1
Para 6.3

Question 28

Two SRA codes of conduct

Answer 28

The SRA now have two distinct codes of conduct:

One for individuals: SRA Code of Conduct for Solicitors, RELs and RFLs.
One for firms: SRA Code of Conduct for Firms.

Question 29

Good cause for sol termination

Answer 29

There is an implied term that the
solicitor may terminate the retainer
upon reasonable notice for good
cause.

Question 30

Re Romer & Haslam [1893]2 QB 286

Answer 30

If a solicitor wrongfully terminates a retainer,
they are not entitled to be paid.

Question 31

Wild v Simpson [1919] 2 KB 544

Answer 31

If a solicitor terminates a retainer
unreasonable, they may not be entitled to
payment even on a quantum meruit basis.

Question 32

Buxton v Mills-Owen [2010] EWCA

Answer 32

A client had insisted that grounds be
advanced which the solicitors and counsel
considered not to be properly arguable,
solicitors had reasonable grounds for
terminating the retainer; and it followed that,
even though they had not completed the
entire contract, the solicitors were entitled to
be paid their profit costs and disbursements
for the work done prior to termination.

Question 33

Warmingtons v McMurray [1936]

Answer 33

Where there is an entire contract there must
be entire performance to entitle the lawyer to
remuneration however if a client does not
perform his part of a bargain, that would
discharge the solicitor and he may then sue on
a quantum meruit. For example, where the
client failed to put the solicitor in funds for
counsel’s fees and other disbursements

Question 34

CFA made up of

Answer 34

Basic costs- proximation of costs
Disbursements- profit costs/extras/external costs
Success fees/damage percentage

Question 35

Hourly rates

Answer 35

Used to be A + B principle pre CPR

A- approximation of costs
B- profit costs

Now hourly rates set out by SCCO in units of 6 minutes 1/10