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preparing his bill of costs immediately.
The first solicitor has a statutory and
professional duty to furnish the client or
his solicitor with the bill of costs as soon
as reasonably possible. He may wish to
have the costs drawn by a costs drawer.
If he does so, he should refer his file to
the costs drawer immediately and ensure
that the matter receives prompt attention.
The fees of the costs drawer are not
chargeable to the client.
A solicitor is not entitled to delay
drawing his bill of costs until he obtains
an undertaking in respect of the payment
of those costs, even if he is only seeking
an undertaking to pay the costs when
agreed or taxed.
If there is delay in furnishing the bill of
costs, the smooth transition of the matter
between the two solicitors is unlikely to
be accomplished.
Cost may be agreed, arbitrated or
taxed.
When the bill of costs is furnished to the
client or his solicitor, the amount may be
agreed immediately. Alternatively, the
client may instruct the second solicitor
to raise queries in relation to the bill.
Costs may ultimately be agreed or the
matter may be referred to taxation.
Another option would be for both
solicitors to agree to refer the matter to
one nominated costs drawer with an
agreement that the fee nominated by the
costs drawer will be accepted by all
parties.
It is sometimes asked how a fee can be
agreed in litigation matters when
liability has not been determined and it
is not known at that point for how much
the case will settle. There is no difficulty
in valuing a solicitor's work at any
point, although the figure he receives if
he is paid at the determination of his
retainer may differ substantially, being
either greater or lesser, from the
proportion of the total fee he would have
received had he waited to be paid at the
conclusion of the case.
"No foal, no fee" arrangements
determine if the client moves to
another solicitor.
The first solicitor may have accepted
instructions on a contingency fee basis,
which provided that the solicitor would
be paid only on the successful
conclusion of the case. This arrangement
determines if the client moves to another
solicitor. It can be implied in the "no
foal, no fee" arrangement that it is a term
of such an arrangement that the solicitor
will continue to have prosecution of the
case. When the client moves to another
solicitor, the first solicitor is entitled to
be paid costs and outlays for the work
done to the date of termination of his
instructions.
The first solicitor may opt to accept an
undertaking in respect of the payment
of costs as alternative security to a
lien.
Particularly in litigation matters, in cases
where liability is not an issue, the
solicitor first instructed may take the
view that he is happy to accept an
undertaking in respect of his fees in
substitution for his solicitor's lien. If the
first solicitor is agreeable in principle to
accept such an undertaking, the terms of
the undertaking are a matter for
negotiation and agreement. It would be
unlikely that an undertaking which
would be qualified so that payment
would be paid only on the successful
conclusion of the case, or an undertaking
which did not require payment by a
certain date, would represent a sufficient
security for the first solicitor.
The solicitors may agree that a
proportion of the fees would be paid
immediately, the balance to be secured
by a suitable undertaking.
All outlays paid should be refunded
immediately to the first solicitor.
Even in cases where an undertaking in
respect of the payment of his costs is
accepted by the first solicitor, it is
recommended practice that all outlays
paid by the first solicitor are refunded
immediately.
The Law Society has a general
recommendation in respect of medical
reports that the fees for such reports if
not paid before receipt should be paid on
receipt. It is recommended that the fee
should not remain outstanding for more
than 14 days after receipt of the report.
Accordingly, when a client moves to a
new solicitor, if medical report fees or
other report fees have been incurred by
the first solicitor but not paid, the doctor
or other professional should be
contacted and his consent obtained to the
use of the reports. It would not be
appropriate for a solicitor to use medical
and other reports which had not been
paid for without such consent.
If counsel has been briefed and the
second solicitor is retaining the services
of the same counsel, the counsel will
usually agree to await payment until the
conclusion of the case. However, if that
counsel is not being briefed, his fees
should be paid immediately. Otherwise,
the solicitor first instructed would be left
in a difficulty in that he has a
professional duty to try to ensure that all
counsel's fees are paid.
The first solicitor should be released
from undertakings furnished to third
parties.
As already discussed, where the first
solicitor has furnished an undertaking to
a third party, the client's instructions to
the first solicitor are irrevocable, without
the first solicitor's consent. If the first
solicitor consents to the determination of
his retainer, and if it is appropriate for
the second solicitor to do so, he should,
with the consent of the third party,
substitute his own undertaking for that
of the first solicitor to enable the release
of the first solicitor's liability to the third
party.
If this is not appropriate because, for
instance, the undertaking was given
imprudently by the first solicitor, both
solicitors should liaise with the third
party to ensure that the third party is put
as near as possible in the position which
that party would have been in had there
been compliance with the undertaking.
No solicitor should co-operate with a
client who seeks to leave a solicitor
with an outstanding undertaking,
contrary to law.
It is a serious matter if a client seeks to
walk away from his responsibility in
contravention of an agreement with the
solicitor first instructed. Co-operation on
the part of the solicitor subsequently
instructed might be deemed to be
professional misconduct.