The Court of Appeal has upheld a decision that a former law firm’s litigation client should pay her solicitors’ costs after the funding agreement between them ended prematurely.
Lord Justice Lewison said the High Court had been correct in Butler v Bankside Commercial Ltd to interpret the words of a conditional fee agreement in broad terms.
The client, Butler, had signed the CFA with the London firm as part of a claim she was making, but according to the judgment she repeatedly ignored advice about how to respond to an offer to settle. Bankside eventually terminated the retainer and Butler achieved a £40,000 award through different solicitors.
Bankside then presented her with a bill for almost £240,000 (reduced to £210,000 because she had paid disbursement), but she disputed whether the terms of the CFA triggered her liability.
The dispute came down to two possible meanings for a phrase in the CFA: ‘if you reject our opinion about making a settlement with your opponent’. Butler submitted this had a narrow meaning limited to an opinion about something that would directly result in the making of a settlement.
The firm argued that the clear and natural meaning of the phrase was to encompass wider advice about settlement, including advising the client to make their own offer. In the High Court, Mr Justice Turner memorably noted that solicitors should not have to wait ‘like Vladimir and Estragon for an offer from the other side which might never come’ to recover costs. He ruled that, while a settlement was an end point, ‘the making of one is a process’.
Butler submitted to the Court of Appeal that a solicitors’ retainer was an entire contract and that if solicitors did not complete the task for which they were retained, they were not entitled to be paid at all. She said the wider interpretation of the phrase about settlement was ‘onerous and draconian’, and if there were any ambiguities the court should favour of the client.
Lewison highlighted a number of difficulties with her argument. He said the settlement clause was not confined to ‘making’ a settlement but extended to advice ‘about’ making a settlement.
He added: ‘As a matter of ordinary English, advice “about” making a settlement includes advice to the client about making an offer of their own calculated to lead to a settlement. The words are clear, even though the result may expose the client to a greater liability than they might have expected.’ The appeal was dismissed.