Solicitors have an extremely important protection in relation to recovery of their costs from clients. This is the Solicitors’ Lien. What it means in effect is that they have a first call on any money recovered for their client. This is an important right in those cases where it is not possible to recover all of the costs from the other side. In fact, the courts have long held that this is in fact a protection which is at their discretion. It has been called an equitable lien. The protection has traditionally been limited to those case where money is recovered as a result of litigation as opposed to negotiation. Way back in 1917, Rowlatt J said in Meguerditchian v Lightbound [1917] 2 KB 298 –

“Now in my opinion there is no analogy at all between proceedings of that kind and the lien so acquired and a case where there are no proceedings, but merely negotiations with regard to a matter and correspondence taking place between the solicitors on either side.”

How does this translate to the modern world where there is pressure on all parties to resolve matters without resorting to litigation? The most obvious example is the RTA portal which processes hundreds of claims. The point was discussed in Gavin Edmondson Solicitors Ltd v Haven Insurance Co Ltd [2018] UKSC 21. The Supreme Court found in favour of the solicitors in a case where settlement had been achieved without proceedings. Lord Briggs said –

“Provided that the debt has arisen in part from the activities of the solicitor there is no reason in principle (and none has been suggested) why formal proceedings must first have been issued, all the more so in modern times when parties and their solicitors are encouraged as a matter of policy to attempt to resolve disputes by suitable forms of ADR, and when pre-action protocols of widely differing kinds have been developed precisely for that purpose.”

An important driver was access to justice. It was also notable that there was a formal process by way of the portal.

An issue has now arisen in the case of those claiming damages for flight delays.

Bott and Co Solcitors v Ryannair DAC [2019] EWCA Civ 143

The solicitors do not recover costs in most cases and are paid by way of a deduction from damages. Problems arise when flight companies deal directly with clients and effectively bypass the solicitors. It is said that this happens in about 30% of cases. The Court of Appeal found against Bott and Co. They decided that making a claim was simple process so the involvement of lawyers was not required. Lewison LJ approved the following statement from the High Court –

“It is easy for a passenger to comply with, it is limited in time and it imposes no substantive limitation on the passenger’s right to compensation. In fact, as Ryanair argues, a passenger who complies with the provision will receive the whole of its compensation, without deduction of legal fees as would be the case where the claim is brought through Bott.”

The Supreme Court has now given Bott and Co permission to appeal. The Court of Appeal decision is problematic. The RTA portal is easy to use. Efficient lawyers will always develop ways in which to process volume cases using technology, where possible. Does this mean that those very lawyers will now be penalised for making the work more simple and therefore cost effective? It is hard to see why the Bott case falls on one side of the line and RTA portal cases on the other. Watch this space!

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