BAD POINTS, DIFFICULT CLIENTS, TERMINATION OF RETAINERS AND ADVOCATES' DUTIES

Buxton v Mills-Owen

Introduction

1. The recent Court of Appeal case of Richard Buxton (solicitors) v. Hew Llewelyn Paul Mills-Owens; Law Society intervening [2010] EWCA Civ 122 contains important guidance both on the circumstances in which a solicitor engaged in litigation can terminate his retainer and still obtain payment, and also concerning the duties of solicitors and counsel when instructed to put forward points which they do not consider properly to be arguable. The judgment of the Court of Appeal clarifies and explains the duties of both solicitors and counsel to their clients and to the Court, emphasising the paramountcy of the latter in the event of conflict, and as a powerful statement (or re-statement) of professional duties both the facts behind the case and the succession of judgments and the reasoning behind them rewards detailed scrutiny by practitioners.

The Factual Background

2. Mr Buxton is a solicitor of considerable renown in planning and environmental law circles. Mr Mills-Owen is a resident of the New Forest, who is, perhaps understandably, greatly concerned to protect the environment in that area. Mr Mills-Owen was particularly exercised by a decision of the Secretary of State (following the recommendation of a Planning Inspector on appeal) to grant planning permission to one of his neighbours to construct an extension to that neighbour's house in Ringwood. He wished to challenge that decision and, in June 2005, he instructed Mr. Buxton to act on his behalf in that challenge.

3. The retainer was on Mr. Buxton's standard terms and conditions. These included the following:

"7 Termination
You may terminate your instructions to us in writing at any time. However we may keep all your papers and documents while there is money owing to us for our charges and expenses. You are still liable for those until we stop acting. In practice, appropriate arrangements will be made with your new advisers, in continuing litigation matters, particularly where these are legally aided.

In some circumstances, you may consider we ought to stop acting for you, for example, if you cannot give clear or proper instructions on how we are to proceed, or if it is clear that you have lost confidence in how we are carrying out your work.

We may decide to stop acting for you only with good reason, for example, if you do not pay an interim bill or comply with our request for a payment on account. We must give you reasonable notice that we will stop acting for you."

4. The route by which a decision of the Secretary of State on appeal is challenged is section 288 (1) of the Town and Country Planning Act 1990. This provides:

"(1) If any person...
(b) is aggrieved by any action on the part of the Secretary of State to which this section applies and wishes to question the validity of that action on the grounds—
(i) that the action is not within the powers of this Act, or
(ii) that any of the relevant requirements have not been complied with in relation to that action,
he may make an application to the High Court under this section."

5. Therefore as with many manifestations of public law the grounds for challenge are narrow indeed, essentially being confined to the procedural and/or to points of clear law. There is no specific jurisdiction to appeal or challenge a decision on the merits or on matters of the exercise of planning judgment or aesthetic considerations.

6. Following his instruction, Mr Buxton obtained the opinion of specialist counsel, Mr James Findlay. In an opinion dated 1st July 2005, Mr Findlay concluded:

"The hurdles that face somebody wishing to challenge a decision are thus high. In this case, I consider there is no reasonable prospect of success for any challenge...

"Whilst I can fully appreciate Mr Mills-Owens' frustrations, which in part at least appear to be shared by the local planning authority, the Inspector reached a decision that he was entitled to come to and there is no reasonable prospect of challenging it."

7. One might have imagined that having spent money to receive expert opinion in such robust terms, that would have been the end of the matter, but nothing daunted, Mr Mills-Owen instructed Mr Buxton to issue proceedings, which he did with great despatch on the 5th July 2005.

8. The Claim Form adopted a belt and braces approach and contained four grounds of challenge, viz:

"(a) The Inspector failed properly to deal with the issue of exceptional circumstances in his consideration of the applicability of the policy NF-H3 and the cumulative effect and consequences of the two interdependent applications.

(b) The permission granted when read together with the application gives no explanation of precisely what the permission is for.

(c) The appeal process has left the claimant without the ability to make proper representations on appeal and not allowed the appeal to be considered in a proper manner.

(d) There was no proper consideration or screening of the necessity for an environmental impact assessment. This was important given that the area is a National Park."

9. So far, so good: there is nothing intrinsically unusual about a client with a deep-seated sense of grievance seeking to obtain redress in the teeth of considerable adverse odds. Perhaps in consequence of the pessimism expressed by Mr Findlay in his July opinion, on 16th September 2005 new counsel was instructed, Mr Peter Harrison. On 25th September 2005, in an email, he stated that there was a:

"proper argument that the Inspector has misapplied policy NF-H3 and hence made an error of law which would justify quashing the decision".

He said that there were arguments the other way and the prospects of success were: "still perhaps 50/50 but I do think that the point is worth taking and should be argued."

The Seeds of the Dispute

10. Mr Harrison drafted a skeleton argument which was sent to Mr. Mills-Owen on 19th December 2005. It dealt only with ground (a) set out in the Claim Form, and can with the benefit of hindsight be viewed as the spark that ignited the fireworks that were to follow.

11. On the following day, 20th December 2005, Mr Mills-Owens wrote a long letter to Mr Buxton commenting in detail upon the skeleton argument. He complained, in effect, that the skeleton did not deal with the planning merits of the decision. He also said that the skeleton should include argument concerning grounds (b), (c) and (d) as set out in the Claim Form.

12. On 28th December 2005, Mr Mills-Owens wrote again, insisting that the matters referred to in his earlier letter must be included in the skeleton argument. He stated his unhappiness that the skeleton argument did not address his serious concerns about the environmental effects of the development and that the planning authorities had not given due consideration to them.

13. During the ensuing weeks, spirited correspondence continued between Mr Mills-Owens and Mr Buxton, who asserted and maintained his position that grounds (b), (c) and (d) were not arguable errors of law, whereas ground (a) was. Mr Mills-Owens was, conversely, insistent that all four grounds should be included in the skeleton argument and advanced at the forthcoming hearing.

14. Mr Harrison was in the circumstances asked to reconsider the matter, and prepared a Note dated 3rd January 2006 in which he stated that he could only operate "within the very tight parameters set by the law". He dealt with grounds (b) to (d) in detail, describing them as points "which are not going to succeed" and "outside the scope which the law allows". He added that ground (a) was the only argument which "has any proper chance of succeeding and that to put forward the other points would be wrong in law and not helpful to the case overall", effectively advising that it was highly counter-productive to raise bad points that were inevitably not going to succeed. He concluded by saying that his skeleton argument should be amended to give some more context for ground (a) by making clear that it was Mr Mills-Owens' concern to protect the environment which was the motivation behind the challenge.

15. The skeleton argument was amended to reflect this advice, amplifying Mr Mills-Owens' concern to protect the environment, but in its amended form the skeleton argument was still unacceptable to Mr Mills-Owens. On 6th January 2006, he insisted that it should not be lodged with the court since it was "fundamentally flawed".

16. In a letter of 7th January 2006, Mr Buxton said that in his view an impasse had been reached. He continued:

"Perhaps I have not made it clear that counsel is constrained in what can be said in the skeleton argument. Quite apart from the likely effect on costs, he will personally be criticised by the court if he makes points that he considers unarguable... In such circumstances there are three possible courses of action:
- To accept what we say and allow the skeleton to go in as amended (as sent to you with my last letter) though you are welcome to make suggestions as to specific amendments you consider should be made to the text eg. to correct what you say are inaccuracies.
- To take a second opinion from another barrister experienced in this field. Time is relatively tight, but this is nevertheless easily done. You could even do this via another firm of solicitors though it would be more efficient for me to do so.
- Withdraw your instructions to us and simply go elsewhere. This would be disappointing but we cannot act for you if we are at cross purposes.
Please let me know what you want to do."

To the impartial observer, Mr Buxton's advice at this stage appears entirely correct, dealing wholly professionally with a difficult situation.

17. Mr Mills-Owens took his own course, stating in a letter of 11th January 2006:

"I am sorry that you have left me at this late stage to do my Skeleton Argument
myself. I will of course pay your bill where monies are owing but would like it
taxed."

On 16th January, Mr Mills-Owens replied to a suggestion that counsel's skeleton should be lodged by stating that he expected Mr Buxton to follow his "abundantly clear" instructions. He repeated the suggestion inherent in his 11th January letter that he would prepare his own skeleton argument.

18. Mr Buxton kept trying. On 17th January 2006 he wrote that Mr Mills-Owens' instructions were not clear:

"(a) as to whether you wish us to continue acting for you and if so (b) whether to instruct counsel to appear on your behalf on 6th February and if so (c) what is to become of the skeleton argument".

He asked what Mr Mills-Owens wanted him to do.

19. Without telling his solicitor, Mr Mills-Owens lodged his own skeleton argument with the court. The first Mr Buxton knew of this was when he received a communication from the Treasury Solicitor, acting for the Secretary of State, against a background where Mr Buxton had drafted a letter to be sent by his firm to the court explaining why he had not submitted a skeleton argument. On 24th January, he sought the advice of the Law Society and was advised that he could not send the letter or even disclose the existence of another skeleton argument without the authority of Mr Mills-Owens. Mr Buxton explained the facts to the Law Society representative and was told that, on those facts, his firm's position was "untenable" and that they had "good reason" to terminate the retainer.

20. On 25th January 2006, Mr Buxton wrote to Mr Mills-Owens saying that, unless he authorised him to send the letter to the court or gave revised instructions "such that we do indeed represent you along the lines we recommend", he would have to terminate the retainer and apply to the court to come off the record. Mr Buxton said that he had by then read Mr Mills-Owens' skeleton argument and said that it did not "properly address the legal point in the case".

21. On 26th January, Mr Mills-Owens said that Mr Buxton did not have his permission to discuss his (Mr Mills-Owens') skeleton argument or any other document with the defendant. He said that Mr Buxton's proposed letter to the court "is not correct and therefore prejudicial to me". He had made it abundantly clear that he did not and would not approve of the skeleton argument drafted by counsel. He said: "At the risk of being blunt may I suggest you read my letters and address and follow my instructions".

22. On 27th January, Mr Buxton said that he had not sent the letter to the court because he had decided to obtain Mr Mills-Owens' authority before doing so. Mr Mills-Owens' skeleton argument was unlikely to find favour with the court. "I am not saying that it will certainly fail, that would be dangerous, but from quite a lot of experience of these types of cases, which are very difficult in the first place, I believe that this is a likely outcome." Later in the letter, he said:

"If you entirely decline to advance any legal argument along the lines of the first skeleton argument (whether the document is put in or not) it seems to me that we will simply be unable to act."

The letter concluded as follows:

"What I need from you in the immediate future, please, are instructions as to whether you want us to continue to act for you, and if so we must discuss on what terms in relation to arguments that may be advanced.
"I may need firmly to clarify with the Law Society what our professional obligations and possibilities are in this very unusual situation, but I suspect that unless you are prepared to take our advice and permit counsel to argue as he sees fit - even on the basis of your skeleton argument while otherwise relying on the witness statement - it will be necessary to come off the court record so that you will have to appear on 6 February as a litigant in person (or with other representation).
"Please could you clarify that you understand this. I repeat, please also confirm whether or not you do wish to continue to instruct us (and counsel): if so, we believe it will be vital during the course of next week to have a conference in London with counsel firmly to agree what can and cannot be said. We will also need further putting in funds as previously advised. I should also advise that this recent work has taken us over the monies paid on account to some degree. I will advise in more detail next week following your response."

23. On 30th January, Mr Buxton wrote again to Mr Mills-Owens enclosing a copy of the skeleton argument by then submitted by the Treasury Solicitor. He said:

"the slow speed of communication by post combined with your recent approach to the case has put us in an impossible position in terms of representing you.....We have however now given you notice at many points that we will have to terminate the retainer if you do not take our advice and we do not received adequate instructions... So there is just one last chance to try to get matters on to a proper footing and to argue the case as the court would expect at the hearing next week."

24. On 31st January, Mr Mills-Owens repeated many of the points he had already made. He was "appalled and dismayed" to see from the letter of 27th January that Mr Buxton had been discussing his witness statement and skeleton argument with one of the defendants and requested "a typescript of all such conversations and/or copy of the letter(s) with time(s) and date(s) by return and ensure that any statements made which are contrary to my instruction are withdrawn." He went on: "I should make it clear that while you do not follow my instructions you are clearly not acting for me. My instructions are clear and concise and straightforward". He insisted that the skeleton argument drafted by Mr Harrison which he had not accepted was "flawed, factually incorrect and prejudicial to my case." However, he failed to identify any such flaw, error or prejudice. He instructed Mr Buxton to apply to the court for an adjournment so that he had time either to prepare all four grounds of appeal and not just ground (a) or to have time to instruct someone who was prepared to address the true environmental case that he wished to place before the court.

25. In his first letter of 1st February, Mr Buxton wrote that, since he had not heard from Mr Mills-Owens, he was making an application to take his firm off the record. In a second letter of the same date, he wrote:

"I do not like to do it, but professionally have no alternative (unless you are prepared to sit down with me and counsel and discuss the ground rules within which we have to work) to do other than stand down and suggest you seek alternative advice."

26. On 3rd February, Mr Buxton wrote to Mr Mills-Owens saying that the appeal was fixed to be heard by Ouseley J on 6 February. His firm intended to attend in order to assist the judge in case he had questions about the procedural position. Counsel was not instructed to attend, but would be available at short notice should Mr Mills-Owens or the judge so require. Mr Mills-Owens replied on the following day saying: "You are not my solicitor. You do not have my permission to act for me or represent me..... I do not want to be approached by you or counsel or indeed anyone representing your firm in court. I would consider that a gross interference in my case."

The Hearing of the 6th February 2006 and its Aftermath

27. Perhaps predictably, given what had preceded it, sequentially on the 6th February 2006:

(a) Mr Buxton successfully applied to come off the record.

(b) Ouseley J refused Mr Mills-Owens' request for an adjournment.

(c) At the substantive hearing (which followed immediately afterwards), Mr Mills-Owens represented himself.

(d) His appeal was dismissed (as was his subsequent application to Waller LJ for permission to appeal).

The Bill of Costs and Assessment: Master O'Hare

28. Following this, Mr Buxton submitted his bill to Mr Mills-Owen in the sum of £6,605.41. Mr Mills-Owen challenged the bill and after almost 2 years it came before Master O'Hare on detailed assessment on 31st January 2008. Despite finding that the arguments which Mr. Mills-Owen wished to advance were "doomed to disaster" and "doomed to failure", he nevertheless held that the solicitors were not entitled to terminate the retainer. At para 10 of his judgment, Master O'Hare said:

" I think the solicitors (although undoubtedly in difficult circumstances) ultimately adopted a course which, I think, was the wrong course. I think they should not have terminated the instructions as they did. I do not think they had just cause, regardless of what notice they gave. I think what they should have done was carry out the client's instructions, even though they had given (and would no doubt repeat) that such instructions were doomed to disaster. Because they have failed to carry out the client's instructions, I do not think they are entitled to charge him fees in this matter. They were retained for the entire business; that is conducting a statutory appeal. That has to be a statutory appeal on the basis of the instructions made by the client, so long as they are legal, honest and decent. Clients cannot instruct solicitors to do anything improper but (however unwise I might think they were) I do not think this client's instructions were, in any way, improper."
29. At para. 11, he continued:
"There is no reason for cross purposes. So long as the solicitors advise the client that his course of instruction is doomed to failure, I think they ought to follow his instructions. Also, I think it is wrong when [Mr Buxton's letter of 7th January] says, at the start, 'We entirely respect your views and, of course, have to respect your instructions'. Well, it is more than respect for instructions which is needed; so long as they are proper instructions (however misguided solicitors think them) they should not just respect them, they ought to follow them."
Thus, as the retainer was (as he held) an entire contract, the solicitors were not entitled to payment of their fees.

The First Appeal: Mr Justice MacKay

30. Mr Buxton appealed and the appeal came before MacKay J, who again described the arguments which Mr Mills-Owen sought to advance as "bound to fail". Nevertheless he held that Mr Buxton was not entitled to terminate the retainer. In paragraph 21 of his judgment he said this:

"...in my judgment at the end of the day if a client who is prepared to pay for a case to be advanced, wants the claim advanced on a particular basis, which does not involve impropriety on the part of the solicitor or counsel, then it is no answer for the solicitor to say that he believes it is bound to fail and therefore he will not do it."

Having then expressly endorsed the findings of Master O'Hare quoted above, he then continued in paragraph 23:

"I have very considerable sympathy for the solicitors here who had a very difficult problem and a difficult client. But the litigator's back must be broad, and provided that he has given clear advice to that client, if that client wishes to pursue a case which the solicitor honestly believes is going to lose, the client is entitled to instruct him to do so, absent any impropriety or misleading of the court."

Commentators' Response

31. This dark day indeed for solicitors faced with difficult and intransigent clients that refuse to follow advice led the editor of the leading textbook Cook on Costs to observe in the 2010 edition:

"If a client is prepared for a case to be advanced and wants the claim advanced on a particular basis which did not involve impropriety on the part of the solicitor or counsel, then it is no answer for the solicitor to say that he believes it is bound to fail and therefore he will not do it. Whatever one thought about the client's stance, his instructions were firm and unequivocal as to how the case was to be presented and the solicitor ought to have followed them. The situation fell short of the line where the solicitor would have been entitled to terminate the retainer and the solicitors were not entitled for any fees for the work they had done. I suggest the solicitor should have continued to act and adopted the traditional coded message to the court used in these circumstances: 'I am instructed to say'"

The Appeal to the Court of Appeal

32. In the end, it took Mr Buxton's appeal over a £6000 bill to the Court of Appeal, assisted by an intervention by the Law Society to restore some sense of balance to hard-pressed professionals placed in an almost impossible situation by clients that, having paid for expert advice, refuse to follow it.

33. There were in essence three issues on the appeal:

(i) Whether the solicitor's retainer was an "entire contract" (the "entire contract point").

(ii) Whether the Judge was correct to conclude that an instruction by the client to the solicitor to pursue arguments which counsel had described as "outside the scope which the law allows" and "wrong in law" did not involve impropriety on the part of the solicitor such as to justify the termination of the retainer (the "impropriety point").

(iii) Whether the learned Judge was correct to hold that a solicitor can only terminate his retainer if he is instructed to do something which is improper (the "termination point").

The Law Society's intervention was limited to just the second and third points.

The Entire Contract Point

34. So far as the entire contract point was concerned, Mr Buxton referred to many authorities and submitted that the principle that a solicitor's retainer to conduct litigation was an entire contract was out of date when applied to modern litigation. He derived support, for example, from Perotti v Colyer Bristow [2003] EWHC 25 (Ch), where Lindsay J said (at paragraph 136):

"Mr. Perotti asserts that the retainer was an "entire Contract" within the meaning of, for example, Underwood Son & Piper v Lewis [1984] QB 30 CA. I confess to real difficulty in seeing the notion of an entire contract being applied to a contemporary instruction of Solicitors to conduct litigation. Whilst it is easy enough to comprehend that if a contract is made, for example, for a ship to take goods to Bombay, the shipowner is not to be able to leave them in Cape Town and then to demand a rateable proportion, nautical mile by nautical mile, of the agreed price but before more recent requirements as to fees, few, if any, instructions of Solicitors in 1992 to conduct litigation would have contemplated other than that there should be payment from time to time before the whole journey, so to speak, had been completed"

35. This decision of the High Court notwithstanding, the Court of Appeal was unsympathetic. It had "no doubt" that the retainer was an entire contract, relying upon the previous and well known Court of Appeal case of Underwood v Lewis [1894] 2 QB 306 in which Lord Esher MR had stated:

"...when a man goes to a solicitor and instructs him for the purpose of bringing or defending such an action, he does not mean to employ the solicitor to take one step, and then give him fresh instructions to take another step, and so on; he instructs the solicitor as a skilled person to act for him in the action, to take all necessary steps in it, and to carry it on to the end ".

36. It may take further authority to resolve the tension between Perotti and Underwood, but given the relative jurisdictions the Court of Appeal's stance in Buxton must for the present be considered definitive. However, given that the matter is one of contract between solicitor and client, governed by normal contractual principles, there is nothing to stop a solicitor from expressly providing in his terms of business that if his retainer is terminated for whatever reason, he will be entitled to his fees up to the date of termination. I am aware of no authority or rule of practice that would prohibit such a common sense contractual term, and would accordingly urge practitioners to review their standard terms of business.

The Impropriety and Termination Points

37. Mercifully, from the perspective of hounded practitioners, the Court of Appeal allowed the appeal on the Impropriety and Termination Points. It held that both at common law and under the express terms of the retainer in question in this specific case, the solicitors were entitled to terminate the retainer for "good reason" (see terms of retainer at para. 3 above). The Court referred to other passages from the Underwood case in which Lord Esher had said that a solicitor could terminate his retainer if he had "reasonable ground for refusing to act further for the client". In the same case AL Smith LJ had said:

"On the other hand, it is clear that the solicitor may be placed in such a position by the client as to absolve him from the further performance of that contract. It appears to me from the ... cases which have been cited, that the client may put the solicitor in such a position as to entitle him to decline to proceed; for instance, if the solicitor asks for necessary funds for disbursements, and such funds are refused by the client, the solicitor is not bound to go on; and, speaking for myself, I should say that the solicitor is not bound to go on acting for the client if the client insists on some step being taken which the solicitor knows to be dishonourable; and many other cases may be supposed in which the solicitor may be entitled to refuse to act for the client any further. I should say that, when a solicitor is in a position to show that the client has hindered and prevented him from continuing to act as a solicitor should act, then upon notice he may decline to act further, and in such case the solicitor would be entitled to sue for the costs already incurred."

38. The Court also referred to section 65 (2) of the Solicitors Act 1974, which provides that a failure by a client within a reasonable time to pay a reasonable sum on account of the costs of contentious business to be "good cause whereby the solicitor may, upon giving reasonable notice to the client, withdraw from the retainer."

39. The Court then considered what "good reason" meant, and whether Mr Buxton had good reason to terminate his retainer with Mr Mills-Owen. The Court held that the judge was wrong to restrict the circumstances in which a solicitor could lawfully terminate his retainer to those in which he is instructed to do something improper. Whether there is "good reason" in any case depends upon the specific facts of the matter.

40. The court referred to the Solicitors Practice Rules 1990 which applied at the time, paragraph 12.12 of which provided that:

"a solicitor must not terminate his or her retainer with the client except for good reason and upon reasonable notice."

The notes to rule 12.12 in the Guide to the Professional Conduct of Solicitors 1999 included:

"1. It is open to a client to terminate a solicitor's retainer for whatever reason. A solicitor must complete the retainer unless he or she has a good reason for terminating it.

2. Examples of good reasons include where a solicitor cannot continue to act without being in breach of the rules or principles of conduct, or where a solicitor is unable to obtain clear instructions from a client or where there is a serious breakdown in confidence between them."

41. For comparison, the present rules are the Solicitors Code of Conduct 2007, which came into force on 1st July 2007. The terms of rule 2.01 (2) are practically identical:

"You must not cease acting for a client except for good reason and on reasonable notice."

The Guidance to Rule 2 (at paragraph 8) states:

"Examples of good reasons include where there is a breakdown in confidence between you and the client, and where you are unable to obtain proper instructions."

42. Rule 11 of the Solicitors Code of Conduct 2007 applies where solicitors are acting as advocates or exercising a right to conduct litigation (see sections 28 and 119 of the Courts and Legal Services Act 1990). Rule 11.01 (3) states:

"You must not...draft any documents relating to any proceedings containing (a) any contention which you do not consider to be properly arguable".

43. By section 28 (2A) of the Courts and Legal Services Act 1990:

"Every person who exercises before any court a right of audience granted by an
authorised body has—
(a) a duty to the court to act with independence in the interests of justice; and
(b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;
and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them."

44. Thus if a solicitor himself is acting as the advocate, it would be improper for him to put forward a contention that he did not consider to be properly arguable. But what if he instructs counsel in respect of the proposed advocacy? The court referred to the Bar Code of Conduct which provides (so far as is material):

"603. A barrister must not accept any instructions if to do so would cause him to be professionally embarrassed and for this purpose a barrister will be professionally embarrassed...
(c) if the instructions seek to limit the ordinary authority or discretion of barrister in the conduct of proceedings in court or to require a barrister to act otherwise than in conformity with law or with the provisions of this Code;

704 A barrister must not devise facts which will assist in advancing the lay client's case and must not draft any statement of case, witness statement, affidavit, notice of appeal or other document containing:
(b) any contention which he does not consider to be properly arguable;
provided that nothing in this paragraph shall prevent a barrister drafting a document containing specific factual statements or contentions included by the barrister subject to confirmation or their accuracy by the lay client or witness.

708. A barrister when conducting proceedings in Court:
(f) must not make a submission which he does not consider to be properly arguable ".

45. The Court was quite clear that a solicitor had "good reason" to terminate his retainer if the client insisted that he instruct counsel to put forward an argument which he or she did not consider to be properly arguable. Dyson LJ stated:

"I am in no doubt that even before the point was spelt out in the 2007 Code, it would have been understood by all solicitors that, as officers of the court, they were under a professional duty (i) not to include in the court documents that they drafted any contention which they did not consider to be properly arguable and (ii) not to instruct counsel to advance contentions which they did not consider to be properly arguable"

46. The court also referred to the overriding objective in CPR Part 1.1 and CPR part 1.3, which provides that "The parties are required to help the court to further the overriding objective." It then made reference to the earlier case of Geberan Trading Co Ltd v Skjevesland [2002] EWCA Civ 1567, [2003] 1 WLR 912 (at para 37), where in setting out some of the duties of an advocate, the Court of Appeal had stated:

"It is well established that as an officer of the court an advocate has a duty to the court, which overrides his duty to his client: see Rondel v Worsley [1969] 1 AC 191 , 227–228, per Lord Reid. Accordingly, an advocate may not deceive or knowingly mislead the court. The advocate must bring to the attention of the court all relevant decisions and legislative provisions of which he is aware: see, for example, Copeland v Smith (Practice Note) [2000] 1 WLR 1371. The advocate must bring to the attention of the court any procedural irregularity during the course of the trial: see R v Langford The Times, 12 January 2001. The advocate must conduct the proceedings economically: see Practice Direction (Civil Litigation: Case Management) [1995] 1 WLR 508 . Under the CPR , it is the express duty of the parties, and hence their legal advisers, including advocates, to help the court to further the overriding objective in rule 1.3. These are merely some examples of the practical application of the advocate's duty to the court."

47. The Court considered and then expressly disapproved the passage from Cook on Costs 2010 set out in paragraph 31 above. Dyson LJ concluded:

"In my judgment, if an advocate considers that a point is properly arguable, he should argue it without reservation. If he does not consider it to be properly arguable, he should refuse to argue it. He should not advance a submission but signal to the judge that he thinks that it is weak or hopeless by using the coded language "I am instructed that". Such coded language is well understood as conveying that the advocate expects it to be rejected. In my judgment, such language should be avoided."

Conclusion

48. Based upon the above reason, some 4 years after the event the Court allowed the appeal and held both that Mr Buxton was in the circumstances entitled to terminate his retainer and that he was entitled to be paid his proper costs and disbursements for the work he had done up to the date of termination. Mr Buxton received a personal note of congratulation, Lord Justice Dyson concluding:

"Finally, I should record my view that, throughout his dealings with Mr Mills-Owens, Mr Buxton has acted in a thoroughly professional manner and has shown conspicuous patience."

It may be seen as a great pity that such exemplary professionalism took 3 rounds of litigation to be vindicated.

49. The Court of Appeal acknowledged that it will frequently be difficult for solicitors to draw the line between an argument that a client wishes to put forward that can be properly articulated, albeit with little chance of success, and an argument that cannot properly be articulated and is therefore almost certain to fail. In the absence of a comprehensive definition of what amounts to 'good reason', the same being infinitely fact-sensitive, solicitors must make their decision based upon the facts of a particular instruction.

50. From a practical perspective, I would suggest that to avoid (or minimise) the potential for clashes with clients, solicitors should endeavour to manage expectations from the outset, setting out, if at all possible, the relative strengths and weaknesses of the arguments they wish to pursue. I imagine that all competent solicitors do so at an early stage. Regular updates to clients are also crucial, particularly at key stages in a dispute, hopefully to manage unrealistic client expectations and always bearing in mind the real risk that pretty much any case may weaken during the course of proceedings in consequence of, for example, unanticipated documentary evidence or witnesses being revealed. In addition to discussing the evolution of cases with clients (and, where appropriate, with counsel) as soon as possible, it is of course crucial that any advice given to clients is recorded in writing in order to be well placed to defend reasons for terminating a retainer in the event of non-payment of fees and/or claims from clients for an alleged lost opportunity to pursue their case.

51. There will always be occasional clients that will be particularly difficult, in which regard I add a cautionary note: in litigious matters the guidance accompanying Practice Rule 2 is clear that it will normally be unreasonable to stop acting for a client immediately before a court hearing where it is impossible for the client to find alternative representation. In such circumstances, the court will step in to protect the litigant. While Mr Buxton ended up receiving the praise of the Court of Appeal, if impasses such as occurred in the present case under discussion do arise, it would be better for a retainer to be terminated well in advance of any scheduled hearing, if at all possible.

52. There can be no doubt that solicitors are in an unenviable position if they and their client do not concur over how the case should proceed. Terminating the retainer without good reason exposes the solicitor to the risk of non-payment of fees and/or a claim by their client for loss of the chance to bring their case. Conversely, not terminating and simply following the client's instructions risks the solicitor being in breach of the relevant rules and codes of practice and his obligations to the court, and possibly an order for wasted costs if the assistance the solicitor lends amounts to the an abuse of court's process.

53. Ultimately, there is no silver bullet, each case (as ever) being dependent upon its own facts. The decision of the Court of Appeal in Buxton at least redresses the considerable consternation caused by the judgment of MacKay J., allowing at least the potential to be excused from further participation in litigation, even at a late stage, where a good reason can be established.

Mark Simeon Jones
3 Dr Johnson's Buildings
12th January 2011