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Implied Retainers

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McDonnell v Dass Legal Solutions (MK) Law Limited t/a DLS Law [2022] EWHC 991 (Admin)

In a recent Judgment the High Court has provided a recap of the case law and the considerations that are taken into account when considering whether or not an implied retainer existed between solicitor and client.

In the index case the Claimant was pursuing the Defendant in negligence in relation to a number of land transactions which he alleged involved a retainer between himself and the Defendant.

His position was an implied retainer existed through conduct on the basis that the parties had acted as if the relationship was one of Solicitor and client.  

Mr. Justice Foster considered the four pertinent considerations when considering whether or not an implied retainer existed.  

Necessity

The test for implication is necessity.  Referring to Caliendo v Mischon de Reya [2016] EWHC 150 he considered Arnold J’s position at paragraph 682 of that Judgment as putting the key question,

“Was there conduct by the parties which was consistent only with Mischon de Reya being retained as Solicitors for the Claimant?”

Declining an Expressed Retainer

Declining to enter into an expressed retainer was evidence unsupportive of there being an implied retainer in existence.  Referring to Moore-Bick, LJ at paragraph 24 in the decision of James-Bowen v Metropolitan Police Commissioner [2016] EWCA Civ 1217,

“In circumstances where the parties could have entered into an express retainer but have chosen not to do so, I think the Court should be slow to find they have entered into such contract by conduct.  In my view, it could not properly do so unless they have behaved towards each other in a way that can be explained only by an existence of an intention to enter into legal relations of a particular client.”

All of the Circumstances

The objective consideration of all of the circumstances in the index case was always necessary to determine whether or not an intention to enter into a retainer could be implied.  The dicta of Lightman J in Dean v Allin & Watts [2010] PLNR 921 at para 22

“…an implied retainer could only arise where on an objective consideration of all of the circumstances an intention to enter into such contractual relationships ought fairly and properly to be imputed to the parties.”

In Dean v Allin & Watts such circumstances included the fact that the individual in question was not liable for the Solicitor’s fees, did not directly instruct their Solicitors, that other contractual relationships between the parties had existed in the past but had not been the current case, and the failure to advise the Claimant to obtain independent legal advice may indicate that the advice was not necessary as the Solicitor was effectively acting for them.  

Convenience

A retainer would not be imposed purely for convenience.  The case of Searles v Cann & Hallet [1993] PNLR 494 was considered,

“No such retainer should be implied for convenience but only where an objective consideration of all the circumstances makes it so clear an implication that [the Solicitor himself] ought to have appreciated it.”

Applying the Test

In the current case the Court noted that the Claimant had personally had a retainer with the Defendant on a number of previous land transactions and was also involved in contemporaneous land transactions where he had retained the services of the Defendant.  He was an experienced professional and well-versed in seeking and taking advice.  In cases where the Claimant had chosen to be a client, a series of signed client care letters had been evidenced which was in contradiction to the absence of such a document in the index case.  All of those circumstances led the Court to infer that the Claimant had chosen not to be the client for the purpose of the land transaction.

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