Presumption trumps doubt in implied retainer case.

In Robinson -v- EMW Law LLP 2018] EWHC 1757 (Ch) Mr Justice Roth found the fact that Mr Robinson could not positively establish there was an implied agreement to pay his solicitors’ fees did not leave the matter at large so that the benefit of doubt could be given to the paying party.

Mr Robinson was at all material times a solicitor acting as a consultant at Fidelity Law Ltd (“Fidelity”), his instructed solicitors. He had the benefit of a costs order against EMW Law LLP arising out the claim in which he had instructed Fidelity to act for him in October 2014. The written agreement to pay Fidelity’s fees, however, was not entered into until May 2015, shortly before the case was settled. Furthermore, the agreement was not in retrospective terms. The costs judge found that as there was no evidence of an implied agreement for Mr Robinson to pay Fidelity’s fees prior to May 2015, only the fees incurred from the date of the retainer were recoverable. The costs judge had also made a finding of fact that there was an implied agreement that Fidelity would not charge for the work that Mr Robinson did personally on the matter and, therefore, made no allowance in respect of any of Mr Robinson’s fees.

Mr Justice Roth drew a distinction between the approach where a costs judge has a doubt as to whether costs are reasonable and proportionate on a Standard Basis assessment (CPR 44.3) and the approach to be taken when deciding the fundamental question of whether the receiving party has a liability at all to his solicitors.

The court found that, in circumstances where an express or implied agreement between a client and his solicitors cannot be established, there was a rebuttable presumption that the client would be liable to pay his solicitors fees (provided it could be established that they were acting for him with his knowledge and assent). This was especially clear in cases where solicitors were on record as acting for the client – R v Miller & Glennie [1983] 1 WLR 1056 and Adams v London Improved Motor Coach Builders Ltd [1921] 1 KB 495 considered. The costs judge’s finding (that her doubt as to the existence of an implied retainer must be resolved in favour of the paying party) ignored the role of this rebuttable presumption. In the absence of an express or implied agreement that Mr Robinson would not be liable to pay Fidelity’s fees, Fidelity’s fees incurred prior to the May 2015 agreement were recoverable.

Mr Justice Roth also went on to find that the principles laid down in London Scottish Benefit Society -v- Chorley (1884) 13 QBD 872 (as applied in subsequent cases including; Malkinson v [2002] EWCA Civ 1273; Halbourg v EMW Law LLP [2017] Civ 793 and; Shackleton and Associates Ltd v Shamso [2017] EWHC 304 (Comm)) also applied in circumstances where a solicitor instructs another solicitor’s firm to act for him but then does much of the work himself in lieu of the work being carried out by his instructed solicitors. In the circumstances, Mr Robinson was entitled to claim for his reasonable time spent on the matter at an appropriate hourly rate.