The case of Garbutt v Edwards – breach of Solicitors regulatory duties and the retainer!

rden LJ, in the Court of Appeal, in late 2005, said that the failure of a Solicitor to give the client an estimate of costs, as required by the Solicitors Costs Information and Client Care Code and Rule 15 Solicitors Practice Rules did not render the retainer unlawful and unenforceable in the absence of any argument to show why such a failure would have made any difference to the amount of costs the paying party should be required to pay.

She did, however, say that this conclusion was reached because the failure to give a costs estimate in breach of the Code, and Rule 15, was not a serious breach which could render the contract unlawful and therefore unenforceable. That said she was silent, as to whether a serious breach of any professional rule, could render the retainer unenforceable.

We know that a breach of the SCOPE Rules, by Rule 6 thereof, is arguably an eminently serious breach because it gives rise to the possibility of criminal proceedings (and imprisonment), as well as FSA sanctions and Law Society disciplinary proceedings.

Furthermore, section 26 of the Act renders “any agreement thereunder” unenforceable.

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