Cawdery Kaye Fireman & Taylor -v- Gary Minkin [2012] EWCA Civ 546

Posted on Tuesday, May 1st, 2012

GM had instructed CKFT to act in relation to his wife’s applications for non-molestation and occupation orders. He was given a costs estimate of £3,500 plus VAT subject to the usual proviso that it was not fixed and might be exceeded if events took an unexpected turn. He also signed the firm’s standard terms which provided that invoices were payable on delivery and that if an account were overdue without reasonable justification then the firm had the right to suspend or terminate services. Counsel was instructed and preparations made for the hearing of the applications. The day prior to the hearing, it was discovered that Mrs Minkin had left the former matrimonial home and let it to tenants. The occupation order was dismissed and the non-molestation adjourned. CKFT then delivered a Bill for £5,472.50 and indicated they could not begin Court action for possession or GM’s share of the rent until paid. GM queried the Bill. CKFT explained that the situation had changed from the original instructions. There followed a chain of correspondence with CKFT refusing to do any more work until paid and GM questioning the level of costs and CKFT’s conduct before the relationship broke down entirely. GM argued at detailed assessment that CKFT were in breach of retainer by refusing to act. Master O’Hare agreed and ordered that CKFT were entitled to no further fees and must repay sums received on account. Cranston J upheld the decision on the grounds that GM had reasonable justification for withholding payment because the Bill exceeded the estimate by a significant margin. The Court of Appeal found that the CKFT had suspended their retainer, rather than terminated it – they had indicated an unwillingness to work until paid. Furthermore, GM was aware from the terms which he had accepted that the estimate was not fixed and that he had the right to challenge the Bill, which had had not exercised. In the circumstances the GM had no reasonable justification for withholding payment and the solicitors were entitled to suspend their retainer which was later terminated by GM.

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