Editor's blog | When 'no' means 'not unless'

Mr Minkin had instructed solicitor Philip Cooper to act in divorce proceedings against his wife Sharon. The main issue appeared to be about securing access to the matrimonial home, but complications arose early on when it emerged that Mrs Minkin had let the property to paying tenants.

The solicitor’s original estimate of £3,500 was quickly exceeded after initial work on possession proceedings pushed the costs to £5,472.50 without the matter even reaching the court. Mr Minkin, whose financial position was precarious, queried the bill but nonetheless asked the firm to issue proceedings.

Mr Cooper, while sympathising with his client’s situation, repeatedly said he needed the bill paid first and further payments on account made before he could start court proceedings. Much like most lawyers around the country, he said this was his firm’s policy and that he couldn’t “work for free”. Several inconclusive emails later, the solicitor eventually wrote to the court to say he was no longer instructed to act for Mr Minkin.

Last week the Court of Appeal found that the retainer had merely been suspended. So, if you tell your client you will not continue to act for them unless they pay their bill and make payment on account, you have not terminated the retainer and you are still acting for them, was the gist of the judgment.

This may seem obvious in hindsight but it took three rulings, the first two of which reached a different conclusion. Only on appeal did Lord Justice Ward find that the language used in correspondence between Mr Cooper and Mr Minkin did not suggest that the solicitor had ceased to act.

The distinction is not just academic. If the appeal judges had upheld the findings of the courts below, Mr Minkin would have been absolved from paying any fees at all. As things are, he will now be liable for the full bill and probably for at least a portion of the assessment costs, which come to £17,650.

Undoubtedly the appeal judges’ message to trial judges is that they shouldn’t rush to infer that a solicitor refusing to act halfway through a case unless he is in funds amounts to terminating the retainer.