Q&As

Can a solicitor sue for its outstanding fees in circumstances where they did not provide written terms and conditions to their client at the outset of the retainer but instead: verbally informed the client of the basis on which the fees would be charged, provided a breakdown of the fees charged with each invoices. Does it make a difference that the client made a number of interim payments on account in the interim?

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Produced in partnership with Alex Bagnall of Total Legal Solutions
Published on LexisPSL on 30/08/2019

The following Dispute Resolution Q&A produced in partnership with Alex Bagnall of Total Legal Solutions provides comprehensive and up to date legal information covering:

  • Can a solicitor sue for its outstanding fees in circumstances where they did not provide written terms and conditions to their client at the outset of the retainer but instead: verbally informed the client of the basis on which the fees would be charged, provided a breakdown of the fees charged with each invoices. Does it make a difference that the client made a number of interim payments on account in the interim?
  • The need for a written retainer generally
  • Potential difficulties in quantifying payments due under an oral retainer
  • Potential regulatory issues

Can a solicitor sue for its outstanding fees in circumstances where they did not provide written terms and conditions to their client at the outset of the retainer but instead: verbally informed the client of the basis on which the fees would be charged, provided a breakdown of the fees charged with each invoices. Does it make a difference that the client made a number of interim payments on account in the interim?

This Q&A assumes that the contract of retainer was not intended to be a conditional fee agreement (CFA) or a damages-based agreement (DBA).

The need for a written retainer generally

On its most basic analysis, a solicitor’s retainer with their client (retainer) is a simple contract. It is trite that most contracts do not need to be committed to writing to be enforceable, and a retainer is generally no different.

The only retainers which do need to be in writing to be enforceable are CFAs (pursuant to section 58(3) of the Courts and Legal Services Act 1990 (CLSA 1990)) and DBAs (per CLSA 1990, s 58AA(4)). See Practice Note: Conditional fee agreements—definition and requirements.

In Fladgate LLP v Harrison Lang J held (at para [39]):

‘In my judgment, the giving of instructions by a client to a solicitor constitutes the solicitor’s retainer by that client. It is not essential that the retainer is in writing. It may

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