Richard Buxton (Solicitors) v Mills-Owens & Anor [2010] EWCA Civ 122 (23 February 2010)

URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/122.html

Cite as: [2010] 17 EG 96, [2010] 3 Costs LR 421, [2010] CP Rep 26, [2010] EWCA Civ 122, [2010] 1 WLR 1997, [2010] 9 EG 166] EWCA Civ 122

Lord Justice Dyson:

The principal issues that arise on this appeal are whether (i) the appellant solicitors were entitled to terminate their retainer and (ii) whether they were entitled to their profit costs and disbursements up to the date of termination.

At para 43:

The particular question that arises on this appeal is whether a solicitor has good reason for terminating a retainer if a client insists on his putting forward a case and instructing counsel to argue a case which is “doomed to disaster” (Master O’Hare) or which the solicitor believes “is bound to fail” (Mackay J). I agree with Mackay J that it may be difficult to draw the line between an argument which can properly be articulated and put forward (but which has little, if any, prospect of success) and an argument which cannot properly be articulated and which is believed to be bound to fail. The Bar Code of Conduct puts the matter very clearly. Counsel may not draft any document (which must include a skeleton argument) containing a contention which he does not consider to be properly arguable; and he may not make any submission in court which he does not consider to be properly arguable. A corresponding provision appears at rule 11.01(3) of the 2007 Code of Conduct for Solicitors. It must be acknowledged that there is no express provision in those terms in the 1990 Rules (as amended). Nevertheless, 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. That duty was reinforced by CPR 1.3.

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