I re-Tweeted this a few days ago but thought it was worth highlighting for those who (arguably sensibly) do not follow the Free Movement Twitter account.

The Times reported a case called Richard Buxton (Solicitors) v Mills-Owens & Anor [2010] EWCA Civ 122 in which the Court of Appeal held that a solicitor can withdraw representation where the client chooses, against advice, to pursue a meritless case. I have set out the full quote at the end of this post. The suggestion in the report that solicitors are under a professional duty not to advance contentions not properly arguable arguably goes further than the judgment. The BAILII Court of Appeal judgment is here and the High Court judgment here.

It all makes interesting reading from the perspective of an immigration practitioner.

The solicitors terminated their retainer with their client because he insisted that they and counsel who had been instructed in the case should advance certain points which neither they nor counsel considered to be properly arguable. The Costs Judge and then the Divisional Court held that the solicitors could not terminate the retainer unless to continue would involve impropriety or misleading the court. The Law Society intervened to argue that this was too restrictive an approach.

At paragraph 43 Lord Justice Dyson comments that:

‘it may be difficult to draw the line between an argument which can properly be articulated and put forward (but which has little, if any, prospect of success) and an argument which cannot properly be articulated and which is believed to be bound to fail.’

It is deciding where to draw this line that can be so problematic in immigration cases, particularly urgent removal cases where the client is desperate, there is little time, there is incomplete access to the documents and the legal position regarding lawful process and substantive merits can be very confused.

Text of the Times Law Report:

Solicitor can withdraw
Richard Buxton (a Firm) v Mills-Owens

Court of Appeal

Published June 4, 2010

Since solicitors were under a professional duty not to advance arguments which they did not consider to be properly arguable, where a client insisted on such argument being advanced, a solicitor was lawfully entitled to terminate his retainer.

The Court of Appeal (Sir Mark Potter, President, Lord Justice Dyson and Lord Justice Maurice Kay) so stated on February 23, 2010, when allowing an appeal by Richard Buxton, solicitors, Cambridge, against the determination of Mr Justice Mackay, sitting with Master Simons and Mr Martin Cockx as assessors, ([2008] EWHC 1831 (QB)) that Buxton was not entitled to terminate its retainer from Huw Llewelyn Paul Mills-Owens.

The judge had held that it was not sufficient just cause to refuse to advance a claim because the solicitor believed it was bound to fail. Mr Mills-Owen’s cross-appeal on the issue of disbursements was dismissed.

LORD JUSTICE DYSON said that at common law a solicitor might terminate his retainer on reasonable notice and if he had a reasonable ground for refusing to act further for the client: seeUnderwood, Son & Piper v Lewis ([1894] 2 QB 306, 313).

There was no comprehensive definition of what amounted to good reason but it was wrong to restrict the circumstances to those involving impropriety. Solicitors were under a professional duty not to advance contentions not properly arguable.

Since the respondent refused to accept that a statutory planning challenge could only be made for legal error, the appellant had good reason for terminating the retainer and was entitled to costs.