Who will pay for the expert's report?

I sit in the modest but user-friendly Swindon County Court. My literal visual view is of concrete walls that have formerly been painted white but are now grey '“ the boundary of the court car park but probably a party wall owned by the neighbours. More distantly is a smart new white painted apartment block with bright blue trims, epitome of the council's efforts to bring stylish housing into the town centre to encourage business back into town from outlying business parks.

I see the two buildings rather as I see the court and the law '“ there's the well worn familiar part that I use every day and understand so well that I may have forgotten the difficulties it presents for others, and there's the part I didn't need to know about in practice that seems complex but is really very well established and just seems impressive because of the way it is presented.

One example is in the area of costs, and, linked to that, the concept of the solicitor's lien. As a former barrister, I was largely insulated from the realities of collecting costs and rarely had to have any more concern about being paid than knowing who had instructed me. As a district judge I've learned to enjoy some aspects of costs assessments '“ there is entertainment value in listening to an expert costs draftsman argue against the lawyer who had conduct of the proceedings but who may well not know much about costs. I'm on a steep learning curve.

I recently had cause to be glad that this is a two-judge court and the other judge was a solicitor: I knew a problem when I met it, but not what it was or what it was called. Parties to a contact dispute, now unrepresented because what funds they had had been spent on earlier hearings, came before me with a CAFCASS report that recommended that a specialist risk assessment be obtained. Solicitors had obtained costs estimates '“ we needed about £3,000.

There were some monies on deposit in the parties' joint names with one solicitor, the net proceeds of sale of their former home: both parties had outstanding bills from their solicitors and other debts. They thought they might agree to use the net proceeds to resolve the case: I thought I had better be careful. Here's how it went:

Scope of the lien

A lien is 'a right to keep possession of property belonging to another person until a debt owed by that person is discharged'. A solicitor has a right to retain money, papers or other property belonging to his client which properly comes into his possession until payment of his costs, regardless of any connection between the property and the reason for incurring the coasts. That seemed to be the answer tomy query.

However, the solicitor cannot retain money in excess of the amount due (even though he may retain until payment property to any value even if greatly more than his bill.) So I would need there to be some excess.

On the way through the books, I discover that at common law there is also a 'particular lien' on property recovered in litigation which extends to property not in the solicitor's possession and which gives him an equitable right to have the property transferred into his possession. This is extended by the Solicitors Act 1974, section 73, which gives the court power (on a part 8 application) to declare the solicitor entitled to a charge on property recovered or preserved through his efforts in proceedings '“ a concept reflected in the Legal Services Commission's charge. The charge applies to real and personal property and is not available where the claim for costs is statute barred. Interesting, but takes me no further.

Papers pose some interesting points nowadays '“ they have little value to the solicitor and reducing value to the modern client, who will have been copied into most correspondence and supplied with documents by email and, of course, many papers will exist in electronic form '“ does a Word document count as paper? For the sake of completeness, I now know that a solicitor is entitled to keep papers until his costs have been paid where the retainer is terminated by the client (Abse (Leo) & Cohen v Evan G Jones (Builders) Ltd (1984) 128 Sol Jo 317). But where the solicitor discharges himself the usual practice is for the court to direct him to hand over the papers to the new solicitor against an undertaking to preserve the lien. The interests of justice should not be frustrated. Did that principle help me if we needed to use the funds to obtain an expert opinion?

Finally, as identified by my colleague, money paid to a solicitor for general purposes is likely to be subject to a lien but other money will fall into the 'special purpose' category and will not be subject to a lien because it is held as a trustee and not as a solicitor. So, one solicitor holds joint funds on behalf of two persons, only one of whom is his client '“ clearly as trustee for the other person, almost certainly for both.

So what did I do? I put the decision off, so that both parties could ask their solicitors whether there was any reason not to use the funds for this purpose, and asked CAFCASS to attend next time to consider whether I should appoint a children's guardian, thinking that that might give us access to public funding. On the return date, the senior CAFCASS officer helped me decide we did not need the risk assessment after all.