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This is an excerpt from a matter that was heard before Madam Justice Southin |
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In that case, Madam Justice Southin had occasion to consider the historical relationship between solicitor and client and concluded that by the end of the 19th century, the law had matured into some 10 propositions: 1. A contract for a retainer of a single transaction, e.g., a common law action, is an entire contract. In that context, a common law action means a trial and does not include appeals which ordinarily are the subject of a separate retainer. 2. A retainer to conduct a suit in equity might encompass several separate entire contracts. 3. A solicitor is not entitled tothe consideration due him under his contract of retainer until he has performed his part, e.g., in a common law action by going to judgment. 4. Nonetheless, the client had an obligation to furnish the money necessary for disbursements. As counsel's fees in England were disbursements, this could be a substantial sum. If the client failed to do so, the solicitor could terminate the contract and sue. Underlying thiswas the notion, I think, that a failure to provide the money was a repudiation on the part of the client, it being an implied term of the contract he would do so. 5. I a solicitor terminated an entire contract without cause, he could not recover at all. 6. If the client terminated the contract without cause, the solicitor was entitled to recover for work done. 7. A contract of retainer was terminated by the death of the client. 8. The term "bill" used in the acts of....was understood to mean a claim for fees to which the solicitor, having performed his part of an entire contract had a right. 9. Payment of a "bill" deprived the client of any right to tax under the Solicitors Act but payment of money on account of fees or disbursements or both during the course of an entire contract did not. 10. There was nothing to prevent a solicitor from asking for money on account of fees during the course of an entire contract.
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