High crimes and misdemeanours

One of the books I read over the summer was by the Secret Barrister: in essence a polemic on the criminal justice system: I rather enjoyed it and you can find her blog here: https://thesecretbarrister.com.

It would be wrong to think however, that all criminal cases are publically funded and suffer from the sort of constraints identified the book: far from it.

Even in the days when I graced the floor of various magistrates courts, there was a division in work between the ordinary crimes (allegedly) committed by poor people, and what I called “posh crime” committed (allegedly) by wealthy individuals and corporations, who were well able to fund their defence and afford such luxuries as expert evidence.

This is criminal litigation and it has both differences and similarities to civil litigation. One of the features of such cases is that it is not uncommon for legal representation to be changed, part way through, and in such circumstances one of the issues that can arise is the solicitor’s lien in respect of unpaid fees and whether it is treated differently in law because the matter is in the criminal courts.

In the case of Udoamaka Onuigbo v Regina [2014] EWCA Civ Crim 65 the Court of Appeal had to consider for the first time, the application of the lien and its significance in criminal proceedings, where a solicitor and client had parted company, and the former solicitor was asserting his lien.

44 At the conclusion of argument in the appeal we requested that the parties provide the court with further written assistance upon the solicitors’ lien at common law and its legitimate reach over papers required in confiscation proceedings as part of the sentencing process in a criminal trial. We are indebted to the parties for their prodigious efforts to provide the court with the assistance requested. We are hampered in any analysis of the lawfulness and reach of the lien claimed in the present case by a complete lack of knowledge of the terms of the retainer held by the appellant’s former solicitors and of the precise circumstances in which they withdrew. Secondly, we are informed by counsel that they have been unable to unearth any previous authority upon a challenge to a lien exercised by solicitors instructed to act in criminal proceedings. We shall proceed upon the assumption which may or may not be correct that the appellant’s trial solicitors discharged their retainer because the funding third party failed to make the final payment of fees due for the conduct of the trial.

Thus it is important to note, that this case concerned a solicitor who terminated the retainer, because they had not been paid. It is not the factual case, that the client terminated the retainer. The Court of Appeal then set out the following principles by way of recital:

45 A lien may be created by the contractual relationship between the parties and/or by operation of law. As to contract, if A delivers property to B pursuant to an agreement that B will do work on the property, B will have a lien over the property to secure payment for work done. A contractual lien entitles the creditor to retain possession of the debtor’s property (see In re Coslett Contractors Limited [1998] 2 Ch 495 , per Millett LJ, page 508G). The terms of a contract may determine whether one party may exercise a lien over the property of another (see paragraph below 48). A solicitor’s lien is said to arise at common law to secure payment for work done by an officer of the court upon the papers relating to the matter in issue, whether the business is contentious or not. The rights that arise at common law depend upon the circumstances in which the retainer was terminated. In In re Faithfull [1868] LR 325 the Vice Chancellor refused to order the applicant’s former solicitors to deliver up papers required for pending litigation where the client had himself terminated the solicitor’s retainer. If, however, the solicitor had discharged himself the position would have been different. The Vice Chancellor said (at page 327):

“…the law seems to me to be clear, that if a solicitor chooses to discharge himself he cannot leave his client in the lurch in the middle of a matter, because his client cannot supply him with money, or by reason of any other difficulty; if he does, he must produce (but not give up) to the new solicitor all papers necessary to enable him to prosecute or defend the matter in litigation.”

(emphasis added)

It will be noted that the key question, is who terminated the retainer?

The Court of Appeal then went on to note:

46 In French v Carter Lemon Camerons LLP [2012] EWCA Civ 1180 (Lloyd and Stanley Burnton LJJ, Morgan J), the Court of Appeal accepted as accurate the following statement of the law made in Halsbury’s Laws of England, 5th edition, vol. 66, at paragraph 1003:

“In the event of a change of solicitors in the course of an action, the former solicitor’s retaining lien is not taken away but his rights in respect of it may be modified according to whether he discharges himself or is discharged by the client. If he is discharged by the client otherwise than for misconduct he cannot, so long as his costs are unpaid, be compelled to produce or hand over the papers even in a divorce case [ Hughes v Hughes [1958] P 224, [1980] 3 All ER 179 ]. If, on the other hand, he discharges himself, he may be ordered to hand over the papers to the new solicitor on the new solicitor’s undertaking to hold them without prejudice to his lien, to return them intact after the action is over and to allow the former solicitor access to them in the meantime and if necessary to prosecute the proceedings in an active manner.”

This statement is also supported by the judgments of a powerful two-judge Court of Appeal in Gamlen Chemical Co (UK) Limited v Rochem Limited and others [1980] 1 All ER 1049 (Goff and Templeman LJJ). The court found that a solicitor discharging himself should not be allowed to exert his lien so as to interfere with the course of justice. The court was exercising an equitable jurisdiction ( per Templeman LJ at page 1058h) which may admit of exceptions to the general rule and the court may impose conditions on which the papers should be released to another solicitor, depending on the circumstances. It is usual for the solicitor required to hand over the papers to do so upon the new solicitor’s undertaking to hold them to his order and to return them intact at the conclusion of the proceedings. In Bentley v Gaisford [1997] QB 627 the Court of Appeal held that the release of papers subject to such an undertaking did not entitle the new solicitor to make copies and send them to his client unless that was necessary for the disposal of the proceedings. The obligation of the new solicitor was to preserve the lien in favour of the first solicitor to the maximum extent compatible with the need for disclosure.

Thus, again the question of whom terminated the retainer is emphasised to be key.

The Court of Appeal went onto consider the Code of Conduct:

47 Rule 2.01 (2) of the Solicitors’ Code of Conduct 2007 provides only that the solicitor must not cease to act for a client except for good reason and on reasonable notice. Paragraph 11 of the Guidance that accompanies the Rules advises that the solicitor should “try to ensure the client’s position is not prejudiced” when a lien is exercised. Undertakings to secure costs should be used as an alternative to the exercise of a lien if possible. There may be circumstances where the exercise of a lien would be unreasonable, for example, where the sum outstanding is small or the value or importance of the matter is very great. The Guidance recommends recourse to Cordery on Solicitors.

They then moved to the issue as to whether the law of liens is any different in criminal proceedings as opposed to civil proceedings:

48 We have access to no authority as to whether different principles apply to the exercise of a lien over papers required in criminal rather than civil proceedings. We suspect that this is because solicitors engaged in a criminal matter do not usually exert a lien over trial papers. In criminal proceedings, unlike civil proceedings (in which the client has a financial interest in the matter at issue against which the lien can be enforced), the issue at stake is liability to a criminal conviction leading to possible imprisonment and confiscation of assets. The client does not have a free choice whether to continue participation in the proceedings. It seems to us that the interests of justice test as it affects criminal proceedings points heavily in favour of an order for production. It is to be noted that a solicitor’s lien cannot be exerted by a solicitor acting under a representation order since clause 8.12 of the Legal Aid Standard Crime Contract Terms 2010 specifically provides that work done under the contract will not entitle the solicitor to a lien.

They then considered the law in Australia:

49 In R v Storer [1993] 111 FLR 243 (Supreme Court , Australian Capital Territory) a subpoena duces tecum was served on a solicitor who remained in possession of files relating to the defendant’s defence to charges of false accounting following the solicitor’s withdrawal for non-payment. The court held that the right of the solicitor to rely upon his lien for unpaid fees had to give way where the interests of justice required. Gallop J examined the papers produced to the court and ordered that they should be made available to Mr Storer’s new solicitors upon their undertaking that they would be held subject to the first solicitor’s lien. That decision was followed by the court in Re Dunstan [2000] 155 FLR 189 in which Miles CJ said:

“Solicitors are of course entitled to be paid by the clients for whom they act, but it is a mistake to assume that they have an unfettered right to keep clients’ documents until they get paid. Storer’s case is only one example of the principle that, at least when the interests of an accused person in criminal proceedings are concerned, the solicitor’s right to rely on a lien might have to give way. Indeed the existence of a lien over documents held by a solicitor previously acting for an accused person might not be as clear as has been thought. No case was cited in which it has been held, after argument to the contrary, that a solicitor has a lien over documents relating to criminal proceedings of a former client. The assumption that such a lien exists may, on closer analysis, prove as illusory as the idea that Australia was terra nullius  , ( Mabo v Queensland [No. 2] [1992 175 CLR 1 ) or that a husband cannot be guilty of raping his wife ( R v L [1991] 174 CLR 379 ).”

This is significant, because it would indicate that at common law, in criminal proceedings the lien may not operate at all, although this statement is dicta.

The Court of Appeal then said:

50 In England and Wales the equitable jurisdiction to order the production of papers over which a solicitor’s lien is being exerted is exercised by the High Court. Upon the limited information available to us it is our view that such an application may well have resulted in an order for production of the trial papers subject to the usual undertaking as to the preservation of the lien. We were informed in the course of argument that early in the confiscation proceedings the appellant’s former solicitor attended the Crown Court at the request of HHJ Hardy to explain to the judge the reason why the papers were being withheld. He was informed that having taken the advice of the Solicitors Regulation Authority the solicitor proposed to maintain his lien. We express surprise that this was the advice tendered if it was accurately reported to the judge and now to this court. HHJ Hardy concluded, we are told, that he could make no order requiring production. It seems to us that if the solicitors discharged themselves for non-payment they would have had a difficult time maintaining the justification for their lien upon an application to the High Court for release of those papers in the interests of justice.

No doubt an appropriate case will arise at some further time, when these arguments will be pressed to a conclusion.

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