The LLS Resource

Author of briefing:   William Garnier

Date of briefing:      10 March 2016

Position of briefing/update in Contents:

Chapter no.

Chapter 7

Title of chapter

THE CLIENT CONTRACT

Heading

THE SOLICITOR’S RETAINER

Sub-headings

CONTRACT BY CONDUCT

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Briefing text

[7.11/1]

The case of Caliendo and Barnaby Holdings LLC v Mischcon de Reya (a firm) and Mischcon de Reya LLP[1]further examined the case law on implied retainers. Arnold J succinctly summarised the position:[2]

“the test [for whether an implied retainer has arisen] can be summarised as follows: was there conduct by the parties which was consistent only with [the solicitors] being retained as solicitors for the [potential clients]”

[7.12/1]

Caliendo also highlighted that even if there is no implied retainer, a solicitor may still owe a duty of care to certain parties. As stated in Dean v Allin & Watts[3] the court will be hesitant to find a solicitor has assumed a duty of care in a situation which raises a conflict of interest with their client, but this assumption can be overturned.



[1] [2016] EWHC 150 (Ch)

[2] Ibid, at 682

[3] [2001] EWCA Civ 758, at 33