Coghlan v Lexlaw: the High Court sends a warning about deciding cases on unpleaded arguments

A firm of solicitors asserts an equitable lien over a former client's litigation proceeds, sends notice to the opposing party's lawyers, and then finds itself sued for breach of confidence, breach of fiduciary duty, and a GDPR violation. The underlying story of Coghlan and Burgoyne v Lexlaw Limited [2026] EWHC 1512 (Ch) is unusual enough. But the reason the case has now reached the High Court on appeal, and been sent back to square one, is something more fundamentally procedural, and more widely instructive.

When Lexlaw applied for summary judgement, the county court judge dismissed the application. On appeal, Mr Justice Edwin Johnson set aside that decision on 18 June 2026, not because the claims were obviously hopeless, but because the judge below had decided the application by reference to a case that nobody had pleaded. That is a distinction which matters considerably, and the judgement repays careful reading.

The background involves a conditional fee agreement under which Lexlaw had acted for the claimants in a professional negligence matter. When the claimants terminated the retainer and instructed new solicitors, Lexlaw asserted a lien over unpaid fees and wrote to the other side's lawyers to give notice of it. The claimants subsequently argued that this letter was wrongful, and sued. Their case, as pleaded, was essentially that the letter disclosed confidential information, breached fiduciary duty, and processed personal data unlawfully.

The county court judge, however, refused summary judgement on reasoning that rested on whether the lien had properly arisen at all, specifically on whether an undertaking offered by the incoming solicitors should have triggered a contractual obligation under the CFA to surrender the lien. That was a genuinely interesting question, and quite possibly an arguable one. The problem was that it was not what the claimants had actually pleaded. Their particulars of claim did not allege that the lien had failed to arise. They did not plead the CFA clause on which the judge relied. The proposed amendments in a draft amended particulars of claim, which were before the court but had not been formally listed for hearing, did not cure the deficiency either.

Edwin Johnson J was clear on the consequence: a judge on a summary judgement application is constrained to decide what is actually pleaded, not what might have been or what appears to underlie the claim as a matter of legal logic. This is not a technicality for its own sake. The rule exists because a defendant is entitled to know the case it must meet. If the claim as pleaded has no real prospect of success, summary judgement should follow. If the claimant wants to rely on a different case, it must apply to amend, and the court must decide whether to permit that amendment, weighing all the usual considerations, before the summary judgement application proceeds on the amended footing.

What compounded the difficulty here was the procedural handling of the amendment application. It had been issued shortly before the hearing, was not formally listed for it, and the judge ultimately adjourned it to a later case management conference. Edwin Johnson J found that the two applications should have been heard together, and that neither side nor the judge had squarely addressed this at the time. The result was a judgement that could not stand.

The wider lesson is not subtle. Where an application to amend a statement of case is pending at the time a summary judgement application is heard, the court needs to address both together. If the proposed amendments are said to be relevant to whether the claim survives, they cannot simply be set to one side. The parties carry a shared responsibility to ensure this happens, and failing to raise it is a risk that can prove costly.

Lexlaw has not won. The claimants retain the opportunity to advance a properly pleaded case on the remission. But the firm has spent significant costs establishing that the first hearing was conducted on the wrong basis altogether. That is a lesson in the importance of getting the pleadings right before, not after, a summary judgement application is argued.