A solicitor should not terminate his retainer because he disagrees with the client’s legitimate instructions, the High Court ruled last week.

In upholding a costs judge’s decision not to award solicitors any costs because they had no just cause for terminating the retainer, Mr Justice Mackay said: ‘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, therefore he will not do it.’

He also upheld case law from 1894 that a solicitor’s retainer is one of an ‘entire contract’, meaning he cannot sue for his costs until the contract has been ‘entirely fulfilled’. He rejected the suggestion that this doctrine should now be applied more flexibly, and refused to imply terms such as that the client must act reasonably.

The case concerned well-known Cambridge-based environmental law firm Richard Buxton, which was acting on an appeal against a decision of a planning inspector and whose client failed to understand that he could only challenge the decision on the basis of a legal flaw; he wanted the appeal presented on a much wider basis by reference to the merits of the case and the need to safeguard the environment.

The client refused to accept the advice that this would not succeed, and his lawyers’ more focused approach, and the firm eventually withdrew shortly before the hearing, having also sought advice from the Law Society, which backed the move.

The judge said he had ‘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’.

Mr Buxton called on the Law Society to seek removal of ‘this anomalous practice’, saying: ‘I wonder how many solicitors realise that litigation retainers are subject to the ancient "entire contract" rule, so that however hard you have worked advancing your client’s case, and however difficult a client becomes short of trying to get you to act improperly, the client can get a completely free ride into court?’

He added: ‘We will be looking carefully at our terms of business and how they cover a client’s duties in the relationship.’