One of the areas we are seeing the most increase of cases in is solicitor own client disputes. Recently the Commercial Court held that a Solicitor could bill her client for work that had not had a fee estimate provided for.
In the case of Brookes (t/a Brookes & Co) v Atlantic Marine & Aviation LLP  EWHC 1168 (Comm) (28 February 2018), the Solicitor in question had acted for the client in a number of matters, and at the beginning of their relationship, the client had emailed the Solicitor stating that, unless it was necessary to deal with the matter urgently, the client required a purchase order with a fee estimate before any work was commenced. The Solicitor replied stating that it was difficult to see how using purchase orders could work in practice and that it was difficult to give a firm estimate without more information about the claim. Subsequently, a letter of engagement and standard terms of business were provided and instructions were received for work to be carried out. It then appears on the face of matters, that for whatever reason, the relationship soured, the client failed to pay the last bill and argued that a purchase order had been a term and condition to any liability for fees. This is despite the fact that other fees had been raised and paid.
The Court considered the position and noted that nowhere within the correspondence had the client responded to the Solicitor’s query as to how any purchase order system could work on a practical basis. It was also noted that the client had then proceeded to instruct the Solicitor to do work without further mention or discussion in relation to purchase orders. It appeared as though there was a clear and unambiguous understanding that there would be no need for either a purchase order or anything other than best endeavours from time to time, where appropriate, to produce a costs estimate. This was then compounded by the fact that the Solicitor’s letter of engagement that had been sent at the start made it abundantly clear that the terms and conditions of business applied. Most importantly, the engagement letter stated that if the terms and conditions were not signed and returned then they were deemed to have been accepted and they formed the basis of the professional relationship between the parties.
As a result the Solicitor’s terms governed the relationship and the Solicitor was only obliged to use best endeavours to provide a costs estimate. The Court subsequently decided that the appropriate way to resolve any dispute about the quantum of the outstanding bill was to send it for detailed assessment.
There are a number of lessons to be learnt from the above case, most importantly for litigators is to remember to ensure that you have a valid retainer in place with your client and secondly to remember to answer any queries in relation to the retainer. The Court specifically mentioned in this case that the Solicitor had acted with great care in relation to the retainer and had questioned how to move forward with the Client’s proposals of a purchase order but had received no answers to them.