A retainer is not just paperwork. It is the legal foundation on which the solicitor’s entitlement to charge may depend. If the retainer is defective, unclear, incomplete, inconsistent with the work done, or poorly explained to the client, the problem may not become visible until much later, when the bill is challenged, the case settles, damages are received, or the client asks why so much money has been deducted.
By then, the damage may already have been done.
Retainer issues arise in many different forms: private retainers, conditional fee agreements, damages-based agreements, discounted CFAs, contentious business agreements, funding arrangements, client care letters, estimates, deductions from damages, and solicitor and own client assessments.
I advise and appear in disputes where the retainer is central to the costs position. That may be before the retainer is used, when a bill is challenged, when a solicitor seeks to recover fees, when a client resists payment, or when the costs issue overlaps with professional negligence, funding, ATE insurance or deductions from damages.
Why retainers matter
The best retainer dispute is the one avoided before the retainer is relied upon. The second best is the one recognised early enough to control the damage.
Retainer problems are often avoidable, but they are rarely harmless. A defective retainer may affect whether the solicitor can recover from the client. It may affect whether the solicitor can recover from the opponent. It may affect whether success fees, shortfalls or deductions from damages are enforceable. It may also affect the solicitor’s relationship with the client, the client’s willingness to pay, and any subsequent professional negligence or regulatory complaint.
In commercial and high-value litigation, the sums may be substantial. The retainer may also interact with a litigation funding agreement, ATE insurance, counsel’s fees, settlement priority, security for costs and recovery on assessment.
Retainers should therefore be treated as litigation infrastructure. If the foundations are weak, the structure built on them may not stand.
When I am instructed
I am commonly instructed where a case raises issues about:
- Private retainers;
- Conditional fee agreements;
- Damages-based agreements;
- Discounted CFAs;
- Contentious business agreements;
- Client care letters;
- Costs estimates and costs information;
- Scope of work and authority to incur costs;
- Deductions from damages;
- Success fees;
- Shortfall recovery;
- Termination provisions;
- Assignment or transfer of retainers;
- Funding agreements and ATE insurance;
- Solicitor and own client assessments;
- Challenges to bills;
- Professional negligence overlap;
- Settlement priority disputes;
- Costs recovery from the opposing party.
These issues may arise before proceedings begin, during litigation, at settlement, after delivery of a bill, or on detailed assessment.
Advice before a retainer is used
The best time to consider a retainer is before it becomes controversial.
I advise solicitors, firms, funders and other professional clients on the structure and effect of retainers, particularly where the proposed arrangement involves a CFA, DBA, discounted fee, success fee, deductions from damages, litigation funding, ATE insurance or a high-value commercial claim.
The question is not simply whether the document contains the right words. The question is whether the arrangement is clear, enforceable, properly explained, consistent with the work to be done, and capable of being defended if challenged later.
A retainer should answer practical questions. Who is the client? What work is covered? What work is excluded? What will be charged? When will it be charged? What happens if the case is lost? What happens if the client changes solicitor? What happens if the case settles? What can be deducted from damages? What is the client being asked to agree to?
If those questions are not answered clearly, the retainer may become the dispute.
Defending solicitors’ bills
Solicitors are entitled to be paid for work properly done under a valid retainer. But when a client challenges a bill, the solicitor may need to show more than the fact that the work was done.
The solicitor may need to prove the retainer, the scope of authority, the terms of charging, the reasonableness of the bill, the adequacy of estimates, the client’s informed agreement, and the basis on which any deduction or success fee is claimed.
I advise and appear for solicitors defending bills in solicitor and own client assessments and related disputes. That includes cases involving retainers, estimates, CFAs, DBAs, deductions from damages, interim bills, statute bills, final bills, contentious business agreements and challenges to enforceability.
The aim is to identify the real point of attack early. Some challenges are technical. Some are factual. Some are tactical. Some are symptoms of a wider breakdown in the solicitor-client relationship.
Challenging retainers and bills
I also advise clients, commercial parties and other paying parties who wish to challenge solicitors’ charges.
A challenge may arise because there was no proper retainer, the terms were not adequately explained, the estimate was misleading, the work exceeded the agreed scope, the client did not give informed consent, the bill was not properly delivered, the deductions from damages were excessive, or the solicitor seeks to recover charges which are unreasonable or disproportionate.
The first task is to identify the nature of the challenge. A retainer challenge is not the same as a line-by-line challenge to a bill. A challenge to a success fee is not the same as a challenge to the hourly rate. A complaint about poor service is not the same as a costs assessment, although the two may overlap.
The more precise the challenge, the more effective it is likely to be.
CFAs and DBAs
Conditional fee agreements and damages-based agreements can be powerful tools. They can also be fertile ground for dispute.
Problems may arise from drafting, execution, explanation, termination, assignment, client identity, scope of work, success fee calculation, deductions from damages, or the relationship between the retainer and a wider funding structure.
I advise on CFA and DBA disputes, including challenges to enforceability and disputes about what is payable after success, settlement, termination or transfer of the case.
These cases often require close attention to the documents and the chronology. What was the client told? What did the client sign? What work was covered? What happened later? Did the retainer keep pace with the litigation as it developed?
Estimates and informed consent
Costs estimates are not decorative. They may matter greatly when a bill is challenged.
A client who has been given inadequate, inaccurate or outdated costs information may argue that they did not give informed consent to the costs incurred. A solicitor may need to show what information was given, when it was given, why it was sufficient, and how the client’s instructions were obtained.
I advise on disputes involving estimates, costs updates, client care obligations, informed consent and allegations that the client was not properly told what the litigation would cost.
This is often where practical judgment matters. The court may not expect perfection, but it will look carefully at whether the client was given a fair opportunity to understand the likely costs and risks.
Deductions from damages
Deductions from damages are a recurring source of dispute, particularly in cases involving CFAs, success fees, ATE premiums, shortfall recovery or group claims.
The issue may be whether the deduction was authorised, whether it was properly explained, whether the solicitor was entitled to make it, whether the client gave informed consent, and whether the deduction was reasonable in amount.
I advise both solicitors and clients on disputes about deductions from damages, including cases where the deduction is challenged after settlement or after damages have been received.
These disputes can be sensitive because the client may feel that success in the litigation has been followed by an unexpected reduction in the money actually received.
Retainers and litigation funding
In funded litigation, the solicitor’s retainer does not stand alone. It may interact with the funding agreement, ATE insurance, counsel’s fees, adverse costs risk, settlement priority and the client’s own liability for costs.
If those documents do not fit together, problems may arise. A funder may expect one thing, the solicitor another, the client another, and the opponent may seek to exploit any uncertainty.
I advise on retainer issues in funded claims, including cases involving third-party funding, ATE insurance, CFAs, DBAs, group litigation and collective proceedings.
The central question is usually whether the financial structure of the litigation is coherent, enforceable and capable of being defended.
Professional negligence overlap
A retainer dispute may overlap with professional negligence.
A client may say that the solicitor failed to advise properly about costs, funding, settlement, limitation, prospects, deductions or adverse costs risk. A solicitor may respond that the issue is really one of costs assessment, not negligence. Insurers may need to consider whether the complaint falls within professional liability risk.
I advise where retainer, costs and professional liability issues overlap. These cases benefit from early analysis because the wrong procedural route can waste time, money and tactical advantage.
Who I act for
I am instructed by solicitors, professional liability teams, insurers, commercial clients, individual clients, costs lawyers, litigation funders and parties involved in solicitor-client disputes.
I act both for solicitors defending their entitlement to costs and for clients challenging charges. That dual perspective is useful. Retainer disputes are often won or lost by understanding not only one’s own case, but the point which the other side is most likely to press.
What to send when instructing me
When seeking advice on a retainer issue, it is helpful to send:
- The client care letter;
- The retainer;
- Any CFA, DBA or contentious business agreement;
- Any funding agreement;
- Any ATE policy;
- Any costs estimates or costs updates;
- Any bills delivered to the client;
- Any correspondence about fees, estimates, deductions or settlement;
- Any attendance notes explaining the retainer;
- Any complaint or points of dispute;
- Any response to the complaint or points of dispute;
- The relevant order, judgment or settlement agreement;
- The amount in dispute;
- Any hearing date or deadline;
- A short note identifying the real issue.
A short chronology is often particularly helpful in retainer disputes.
Instructing me
I am often instructed where the retainer is likely to determine whether costs can be recovered, resisted or reduced. These issues are usually best considered early, before the dispute becomes entrenched and before positions have hardened.
For availability, fee arrangements and urgent enquiries, please contact my clerks at Hailsham Chambers.