In a recent judgment in a case shows the importance of the client’s role in instructing their solicitor. In Escalate Law Ltd and Bermans (2012) Ltd v Kennedy and Kennedy [2021] EWHC 2232 (Ch) the Kennedys had previously been represented by law firm Bermans in a claim for professional negligence against another law firm, which had advised the Kennedys in the purchase of a plot of land subject to an overage agreement.
The action was funded by a ‘conditional fee arrangement’ (‘CFA’) (often referred to as a ‘no win no fee’ arrangement) with Escalate Law, with legal services provided by Bermans. In effect, Escalate/Bermans believed the case was sufficiently likely to win that they were happy to share the risk of losing. As part of the contract with Bermans and Escalate Law, the Kennedys would have had certain obligations, such as giving clear, concise and reasonable instructions based on the advice they received. The Kennedys failed to meet their obligations, which voided the CFA; Escalate and Bermans consequently sued them for payment of charges that had been covered under the CFA.
While it’s rare for such a situation to deteriorate this far, the case highlights that it is important to be clear in your instructions to solicitors. We consider below this and some other important things to consider when instructing solicitors, to ensure they can assist you as fully as possible.
Be clear how you want to communicate with your solicitor – is it by email, phone or letter? Are there certain times of the day you would rather be reached, and is there someone you would prefer to act as your representative (e.g. a family member or a professional)? Would you like a hard copy of key advice they give you, so you can review it in your own time? While your solicitor will need to come to you directly and without delay on some matters, they should be mindful of your preferences and work with you to establish good communication strategies.
Your solicitor should provide you with accurate, professional advice you can rely on to help you navigate through the legal system. To do so, they need clear, certain instructions. Where instructions are not clear or are inconsistent it could harm your case, and in extremes they may be forced to terminate the retainer, as the situation could represent a professional risk for them. That is not to say that your instructions cannot or should not change, but simply that you should talk with your solicitor, let them know when/if your situation changes, why, and respond when they ask you for further information or instructions.
Where you have engaged a solicitor to advise on something, be open and upfront with them – the reality is any dishonesty is likely to cause difficulties down the line, even when you think it might help you at the moment. The solicitor will have a duty of confidence towards you (with few and limited exceptions such as the need to report money laundering, or a requirement not to mislead the court); you should always be upfront with them so they can fully and correctly advise you, and act in your best interests.
As in this recent case, you might enter into a Conditional Fee Arrangement (a ‘no win no fee’ arrangement) where you are suing someone. Alternatively, an insurer may be funding your legal expenses (for example your insurance company after a car accident). In such cases it is even more important to give clear instructions and to heed any advice given; insurers will usually only cover legal expenses as long as your case retains a reasonable chance of success. Similarly the terms of any Conditional Fee Arrangement will usually be predicated on merits of the case meeting a certain threshold throughout (usually that you would win on the balance of probabilities). Failing to engage with your solicitors, or being set on a route that is unreasonable or unlikely to succeed, may be grounds for them to revoke their funding agreements and leave you liable for any fees they have incurred so far. It is important you understand the terms of your CFA/insurance policy, and what it requires of you.
For more information about anything mentioned in the article above, please get in touch with Rory Mac Neice.
