Good reason for solicitors to terminate the retainer

Richard Buxton (Solicitors) (Appellant) v Mills-Owens (Respondent) and Law Society (Intervener) [2010] EWCA Civ 122, 23 February; LSG 11 March p15;SJ 2 March p154

The solicitors appealed against a decision [2008] EWHC 1831 (QB) dismissing their appeal against a decision of a costs judge to disallow their claim for profit costs for acting for the respondent client. The solicitors had been retained to conduct a statutory appeal against the grant of planning permission. Counsel had advised that such an appeal could only be based on a procedural or legal error by the planning inspector and that the client only had one such argument that might succeed. Nevertheless, the client insisted that the case be argued on a wider basis by reference to the planning merits of the case and the safeguarding of the environment. The solicitors terminated the retainer and sought payment of their fees up to that point. The fees were assessed by a costs judge, who held that the solicitors should not have terminated their retainer even though they were of the view that the client’s instructions were ‘doomed to disaster’, and that as they had been retained for ‘the entire business’ of the statutory appeal they were not entitled to recover any costs other than disbursements. The judge on appeal agreed with the costs judge that as the instructions were not improper the solicitors had not been entitled to terminate the retainer. The main issue on appeal was whether a solicitor had ‘good reason’, pursuant to r12.12 of the Rules and the Solicitors’ Code of Conduct 2007 r2.01(2), for terminating a retainer if a client insisted on his putting forward a case and instructing counsel to argue a case that was ‘doomed to disaster’ or which the solicitor believed was ‘bound to fail’.