HD & Ors v North Devon Healthcare Trust & Ors, is a recent decision of the Senior Courts Costs Office which offers a useful reminder that a solicitor’s retainer, like any contract, can be brought to an end by conduct and that walking away from a client’s matter can amount to a repudiatory breach with real consequences for the solicitor’s ability to recover fees.
Background
The case arose out of a large cohort of claims brought by patients who alleged failings in the consent process around the use of synthetic mesh for pelvic conditions. The Solicitor, a sole practitioner, had been instructed to act for claimants pursuing damages against various NHS trusts, and six of those claims were linked together for the purposes of resolving common preliminary issues in the detailed assessment proceedings.
The detailed assessment proceedings in those six linked claims had a troubled procedural history, including an aborted five-day hearing in November 2022 after the Claimants’ solicitor failed to lodge the papers required under the Practice Direction to CPR Part 47, which meant the hearing could not proceed. Matters then took a more serious turn. In May 2023, the Solicitors Regulation Authority intervened into the solicitor’s practice. Subsequently, the firm ceased to trade, and the solicitor later faced allegations of professional misconduct before the Solicitors Disciplinary Tribunal. Judgment was given in March 2026 and he was struck off the Roll of Solicitors.
However, the solicitor was not formally removed from the court record as solicitor for the Claimants until June 2025, some two years after the SRA’s intervention, and in the intervening period nothing happened in the detailed assessment proceedings.
The application, and the question of repudiatory breach
Against that background, the Defendant NHS trusts applied for a declaration (and other orders) that the conditional fee agreements between the Claimants and their solicitor had been terminated by the solicitor without good reason and were accordingly unenforceable.
Costs Judge Joseph accepted that submission. The reasoning is worth setting out because it shows how a repudiatory breach can be found from inaction rather than from any explicit renunciation. The judge noted that the Defendants relied on the SRA’s intervention, the shutting down of the solicitor’s practice, his eventual striking off (which meant he was personally prohibited from continuing to act even had he wished to), and his failure to take any steps in the detailed assessment proceedings for a considerable period.
The judge’s central finding was unambiguous: it was a fundamental term of any retainer that the solicitor should act in the matter he had been instructed on, and failing to act in any way, for such a long time, without any credible explanation, constituted a repudiatory breach of the retainers by the solicitor. Notably, there was no evidence of any conduct by the Claimants that might have justified the solicitor terminating the retainers himself: the breach was entirely his.
The judge went on to find that the breach had been accepted. The Claimants accepted the repudiatory breach through their conduct in not instructing the solicitor any further once his practice had been intervened, with some seeking alternative legal advice thereby expressly indicating they no longer wished to avail themselves of his services. There was no evidence that either the SRA or its intervening agents had taken any steps in the costs proceedings on the solicitor’s behalf since the intervention, and the judge summarised the position starkly: the solicitor had abandoned the claimants and their costs proceedings.
Repudiatory breach
The finding of repudiatory breach was analysed in the context of a solicitor’s retainer as an entire contract. The judge cited the statement of Lord Esher MR in Re Underwood & Piper v Lewis, that a solicitor’s retainer in an action is an entire contract to conduct the action to its conclusion, and that a solicitor cannot sue for costs until that contract has been fulfilled. Lord Esher MR did recognise that a solicitor might be entitled to bring a retainer to an end in some circumstances, but only upon giving the client reasonable notice.
Applying that framework, the judge found that the conditional fee agreement with the lead claimant, HD, extended to negotiating or obtaining a court assessment of her recoverable costs, and that step had by no means been completed. Given the intervention into his practice, there was no prospect of the solicitor ever fulfilling his obligations, and the judge inferred from the lengthy period of complete inactivity that he had evinced no intention of doing so. On that basis, the conditional fee agreement was found to be unenforceable by the solicitor against HD, and, by inference from the standard nature of his retainers, the same conclusion applied across all the Claimants in the six linked claims.
Consequences
Once the conditional fee agreements were found to be unenforceable, several consequences followed from the Defendants’ application:
- If the Claimants had no liability to their solicitor for costs incurred under an unenforceable conditional fee agreement, they could have no claim against the Defendants for those costs and any other outcome would breach the indemnity principle. As a result, the detailed assessment proceedings in the six linked claims had to be struck out.
- The Judge went on to find that the Claimants’ costs proceedings had been deliberately allowed to become dormant, amounting to a serious abuse of the court’s process, and ordered immediate strike out as the only realistic and proportionate response.
- With the retainers unenforceable, the case for the solicitor to repay £92,000 of payments on account of costs made to him by NHS Resolution became, in the Judge’s words, “unanswerable,” and an order was made accordingly.
- The wider cohort of Claimants who had not commenced detailed assessment proceedings at all were placed under an unless order requiring them to do so within 28 days, otherwise they would lose their entitlement to costs altogether.
- Applying CPR 44.11, the Judge found the solicitor’s conduct (failing to lodge required papers before an aborted five-day hearing, and thereafter abandoning the assessments) unreasonable, engaging the court’s power to order a non-party legal representative to pay costs personally.
- Those costs were ordered to be paid by the solicitor on the indemnity basis, the Judge finding his conduct took the case well outside the norm.
Conclusion
Whilst this was an extreme case (involving as it did a regulatory intervention, prolonged and unexplained inactivity, and the practical impossibility of ever completing the retainer’s obligations), it nevertheless serves as a stark reminder of the consequences of a repudiatory breach (the loss of the right to payment), which can occur even against a relatively benign background. Practitioners would be well advised to take very great care when terminating retainers, especially if they are a conditional fee agreement.
Robert Patterson, who is a Senior Associate in Clarion’s Costs & Litigation Funding team. Please contact the team at civilandcommercialcosts@clarionsolicitors.com.