WHEN SOLICITORS APPLY TO COME OFF THE RECORD: THE RETAINER, DISCONTINUANCE AND CASE MANAGEMENT ISSUES CONSIDERED

Judgments in relation to applications to come off the record are rare.  The issue was considered by Mr Justice Turner in Wilson & Ors v Bayer Pharma AG & Ors [2022] EWHC 670 (QB).  The judge considered the application to come off the record and the applications by some of the claimants to discontinue.

“The bottom line, however, is that a court cannot normally (if at all) require a solicitor to continue to act for a party whose retainer he or she has terminated.”

THE CASE

The applicant firm of solicitors had been representing a large number of litigants in an an action against the defendant.  The solicitors terminated their retainer and applied to come off the record.  In addition a number, but not all, of the claimants wished to discontinue. The judge considered the application to come off the record and then the issues in relation to discontinuance.

THE APPLICATION TO COME OFF THE RECORD

The judge set out the facts.

THE APPLICATION TO COME OFF THE RECORD

1. 1. CPR 42 governs the procedure to be adopted when a solicitor seeks an order that he has ceased to act for a party. It provides:

“Order that a solicitor has ceased to act

42.3

(1) A solicitor may apply for an order declaring that he has ceased to be the solicitor acting for a party.

(2) Where an application is made under this rule –

(a) notice of the application must be given to the party for whom the solicitor is acting, unless the court directs otherwise; and

(b) the application must be supported by evidence.

(3) Where the court makes an order that a solicitor has ceased to act –

(a) a copy of the order must be served on every party to the proceedings; and

(b) if it is served by a party or the solicitor, the party or the solicitor (as the case may be) must file a certificate of service.”

1. 1. It is to be noted that the Rule gives no guidance on the principles to be applied by the Court when considering such an application. An important distinction, however, falls to be drawn between the contractual termination of the retainer and the court’s declaration that the solicitor in question has ceased to act.

1. 1. A solicitor may terminate his or her retainer on a number of grounds. In order to preserve privilege, I will not identify the grounds relied upon for the purposes of these applications. Indeed, it is quite unnecessary for me to do so. It is simply not open to this Court to adjudicate on the merits of those grounds. Many individual claimants expressed acute and well-articulated disappointment; perceiving that they had been positively encouraged to join in the litigation by PGMBM only to be let down and abandoned at a late stage. PGMBM, on the other hand, contended that they have behaved with propriety throughout. The bottom line, however, is that a court cannot normally (if at all) require a solicitor to continue to act for a party whose retainer he or she has terminated. In circumstances in which the termination of the retainer is unjustified then the individual claimant may seek a seek a remedy in damages, indemnity or costs against the solicitor. I repeat that I make no relevant finding on that issue.

1. 1. It is unnecessary for me to adjudicate upon whether there are any circumstances in which a court may properly decline to make an order under CPR 42.3 where the solicitor has unequivocally terminated his or her retainer. In this case, I can see no advantage and every disadvantage if I were to perpetuate the fiction that PGMBM and the claimants are acting as solicitors and clients respectively when they are clearly not.

1. 1. Notwithstanding these observations, I must bear in mind that, whatever the rights and wrongs of the actions of PGMBM, the claimants (some of whom suffer from a range of disabilities which are liable to present real challenges to their ability to conduct litigation) now find themselves in the invidious position of facing the challenge of progressing their claims in person unless and until alternative representation can be found and funded.

1. 1. A further potential problem arises from the application of the principles set out in Lewis and Another v Daily Telegraph Ltd. (No. 2) [1964] 2 Q.B. 601. In that case, decided under the old Rules of Court, the Court of Appeal ruled that co-plaintiffs in a consolidated action were not entitled to separate legal representation without leave of the court. It remains generally the case that claimants must justify representation by more than one firm of solicitors (see Ong v Ping [2015] EWHC 3258 (Ch)).

1. 1. In this case, I struggle to see how Yip J could continue to exercise case management discipline unless and until the 183 individual claimants are able to agree and retain alternative solicitors to represent their common interests. The best I can do at this stage is to give permission to these claimants to continue unrepresented until further order of the court. The matter may then be reviewed by Yip J, before whom a CMC has been listed tomorrow. It is not for me to trespass into areas which go beyond the strict parameters of the applications immediately before me and I resist the temptation to identify various options which may be open to Yip J in determining the preferred way forward.

1. 1. One consequence of being on the record is that the solicitor’s business address remains its client’s address for service. In order to mitigate to some extent the procedural chaos which would otherwise be liable to ensue in the event of coming off the record forthwith, PGMBM have offered to undertake to continue acting as a post-box for those clients who wish to take advantage of the offer until the end of this year without imposing a fee. They have also indicated that they will not pursue any of the claimants in respect of costs incurred to date. These concessions must be incorporated into the terms of the order of this Court.

THE APPLICATIONS TO DISCONTINUE

The judge then considered the applications of those claimants who wished to discontinue.

THE APPLICATIONS TO DISCONTINUE

1. 1. By letter to all the claimants dated 19 January 2020, PGMBM indicated that its retainer would be terminated at 5:00pm 21 January save in respect of those claimants who wished to discontinue in respect of whom the retainer would continue until after permission to discontinue had been granted.

1. 1. The applications to discontinue are governed by CPR 38.2 which provides in so far as is relevant:

“Right to discontinue claim

38.2

(1) A claimant may discontinue all or part of a claim at any time.

(c) where there is more than one claimant, a claimant may not discontinue unless –

(i) every other claimant consents in writing; or

(ii) the court gives permission.”

1. 1. In this case, the 183 claimants who wish to proceed have not consented in writing. Indeed, PGMBM have not requested such consents arguing that it would not be practical to obtain them.

1. 1. Nevertheless, the usual position is that no party can be made to litigate against their will. In my view, refusing or even postponing the applications to discontinue would seriously hamper the manageability of these. proceedings with little or no clear advantage either to the group of claimants who wish to carry on or those who do not. The challenge of dealing with this case justly and at proportionate cost will be hard enough with 182 litigants in person presently at the helm. How much harder would it be to cope with 231 litigants in person 48 of whom want to play no further part in the proceedings?

1. 1. It follows that I grant the applications to come off the record and for discontinuance subject to the formal concession made by PGMBM to act as a post box and with respect to any claims for costs against the claimants.

1. In addition there are a small number of bespoke applications with respect to individual cases which I am prepared to grant in accordance with the drafts with which I have been provided and without further analysis.