“No win no pay” retainers and possessory lien

Ireland v Trilby Misso Lawyers [2011] QSC 127

In a decision that has received some publicity, McMeekin J usefully reviewed the authorities in relation to possessory liens on speculative personal injury claims (and files) and concluded in terms of the retainer; no fees were owing because of the nature of the speculative action and hence, there was no right to possessory lien: Spence v Gerard Malouf & Partners [2010] NSWSC 764 at [108] per Bergin CJ in Eq.

In addition, McMeekin J referred the matter to the Legal Services Commissioner:

[32] There is a further matter that I should mention. The solicitors sought initially to impose a condition on the release of their file that was plainly not maintainable. To insist on immediate payment of monies in circumstances where none were chargeable is dishonest: Baker at [16] per McPherson JA. Nor is it only the fact of the demand that is of concern. The amount of the bill and certain items within it require some explanation. It may be the solicitors can demonstrate that they had some honest belief that they had the right to charge over $123,000. Absent some explanation the impression is that an outrageous amount was demanded in an attempt to coerce the applicant into accepting an obligation to pay the lesser amount of costs when offered. I have received no argument on the point. I will refer the matter to the Legal Services Commissioner for further investigation.

Brisbane Barrister – David Cormack

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