A well crafted retainer can be a lifeboat for a solicitor facing a solicitor-own client costs dispute and is a vital foundation for any claim for inter partes costs, so long as the indemnity principle endures.
Yet this keystone, is often sadly neglected. A retainer will often be split into a client care letter, a funding agreement and a set of terms and conditions, drafted many years ago.
Like a coral reef, retainers are added to over the years, with clauses and sub-clauses, and extra paragraphs put into the documents, and nothing is ever taken away: the result is redundancies, inconsistencies, and conflicts in the documents.
They stand proudly ignorant of changes in the law, the regulatory regime, and the ever changing torrent of case law which applies to the law and practice of costs.
Three examples will suffice to make the point. In the consumer space, it is 11 years since the cancellation period was extended to 14 days from 7 days, but still I see retainers specifying 7 day cancellation periods, in breach of statutory regulation and the result is the inadvertent involuntary extension of the cancellation period, in which a client can walk away, without liability, to 1 year.
Secondly, many retainers are still based on the venerable Law Society Model Conditional Fee Agreement, a document which long predates fixed costs, the modern doctrine of informed consent and which makes no allowance for the effect of costs budgeting, and its propensity to turn irrecoverable costs into “unusual” costs.
Thirdly, all client care letters should be drafted with the Law Society Practice Note on Client Information Requirements (June 2025) edition in mind, it is a chunky 52 minutes read, according to the Law Society website, but sadly far too many letters are not, as is evident by the holes in compliance that many client care letters demonstrate.
All of these and many other problems can be avoided, by regular retainer reviews, and refreshing the client care suite of documentation, a course preferable to a solicitor own client assessment, or the nightmare scenario of finding that a funding agreement is unenforceable.