I refer to the Court of Appeal decision in Buxton v Mills-Owen [2010] EWCA Civ 122 which seems to me to raise some issues of general concern to the profession. In short, the case turned on whether the claimant solicitors were entitled to terminate their retainer with Mr Mills-Owen; if they were not then, as the work they had been retained to do was not finished and it was an entire contract, they were not entitled to any profit costs at all.

The reason for the termination was said to be Mr Mills-Owen’s failure to accept the solicitor’s advice that the arguments he wanted advancing were hopeless. At first instance (and on the initial appeal to the High Court) it was held that this was no good reason to terminate and, in terms, if a client instructs you to advance a case then, as long as advancing the case does not involve misleading the court or impropriety, those instructions must be accepted and that case advanced no matter how hopeless you believe it to be. On my reading of the facts, I considered those decisions to be unimpeachable.

The appeal court has however overturned those decisions and ruled that it was a good reason to terminate (and so the solicitor should be paid for his time up to the termination). The basis of this is the requirement in the code of conduct (rule 11.01 (3)) that one must not draft any document containing a contention you do not believe is properly arguable.

It seems to me that the consequence of the appeal court’s decision is not just that the solicitor was entitled to terminate the retainer but obliged to terminate it. Indeed the court has gone very close to saying (on my reading) that a hopeless case is unarguable, which is a significant expansion of what I understood unarguable to mean.

While in this case the solicitor gets paid, I am concerned that the consequence of this decision is that any solicitor running a hopeless case (even when the solicitor has advised that it is hopeless and been instructed to proceed) is in breach of his professional rules of conduct, which must be sufficient misconduct to expose the solicitor to liability for a wasted costs order.

I note the Law Society intervened in the appeal court although it is not clear what the tenor of the submissions were; I do trust that the above consequence was anticipated and reflected in those submissions.

Owen Williams, Solicitor-Advocate, Clarke Willmott, Birmingham