The Gazette 1996

instructions on a contingency fee basis, which provided that the solicitor would be paid only on the successful conclusion of the case. This arrangement determines if the client moves to another solicitor. It can be implied in the "no foal, no fee" arrangement that it is a term of such an arrangement that the solicitor will continue to have prosecution of the case. When the client moves to another solicitor, the first solicitor is entitled to be paid costs and outlays for the work done to the date of termination of his instructions. The first solicitor may opt to accept an undertaking in respect of the payment of costs as alternative security to a lien. Particularly in litigation matters, in cases where liability is not an issue, the solicitor first instructed may take the view that he is happy to accept an undertaking in respect of his fees in substitution for his solicitor's lien. If the first solicitor is agreeable in principle to accept such an undertaking, the terms of the undertaking are a matter for negotiation and agreement. It would be unlikely that an undertaking which would be qualified so that payment would be paid only on the successful conclusion of the case, or an undertaking which did not require payment by a certain date, would represent a sufficient security for the first solicitor. The solicitors may agree that a proportion of the fees would be paid immediately, the balance to be secured by a suitable undertaking. All outlays paid should be refunded immediately to the first solicitor. Even in cases where an undertaking in respect of the payment of his costs is accepted by the first solicitor, it is recommended practice that all outlays paid by the first solicitor are refunded immediately. The Law Society has a general recommendation in respect of medical reports that the fees for such reports if not paid before receipt should be paid on receipt. It is recommended that the fee should not remain outstanding for more than 14 days after receipt of the report. Accordingly, when a client moves to a

new solicitor, if medical report fees or other report fees have been incurred by the first solicitor but not paid, the doctor or other professional should be contacted and his consent obtained to the use of the reports. It would not be appropriate for a solicitor to use medical and other reports which had not been paid for without such consent. If counsel has been briefed and the second solicitor is retaining the services of the same counsel, the counsel will usually agree to await payment until the conclusion of the case. However, if that counsel is not being briefed, his fees should be paid immediately. Otherwise, the solicitor first instructed would be left in a difficulty in that he has a professional duty to try to ensure that all counsel's fees are paid. The first solicitor should be released from undertakings furnished to third parties. As already discussed, where the first solicitor has furnished an undertaking to a third party, the client's instructions to the first solicitor are irrevocable, without the first solicitor's consent. If the first solicitor consents to the determination of his retainer, and if it is appropriate for the second solicitor to do so, he should, with the consent of the third party, substitute his own undertaking for that of the first solicitor to enable the release of the first solicitor's liability to the third party. If this is not appropriate because, for instance, the undertaking was given imprudently by the first solicitor, both solicitors should liaise with the third party to ensure that the third party is put as near as possible in the position which that party would have been in had there been compliance with the undertaking. No solicitor should co-operate with a client who seeks to leave a solicitor with an outstanding undertaking, contrary to law. It is a serious matter if a client seeks to walk away from his responsibility in contravention of an agreement with the solicitor first instructed. Co-operation on the part of the solicitor subsequently instructed might be deemed to be professional misconduct.

preparing his bill of costs immediately. The first solicitor has a statutory and professional duty to furnish the client or his solicitor with the bill of costs as soon as reasonably possible. He may wish to have the costs drawn by a costs drawer. If he does so, he should refer his file to the costs drawer immediately and ensure that the matter receives prompt attention. The fees of the costs drawer are not chargeable to the client. A solicitor is not entitled to delay drawing his bill of costs until he obtains an undertaking in respect of the payment of those costs, even if he is only seeking an undertaking to pay the costs when agreed or taxed. If there is delay in furnishing the bill of costs, the smooth transition of the matter between the two solicitors is unlikely to be accomplished. Cost may be agreed, arbitrated or taxed. When the bill of costs is furnished to the client or his solicitor, the amount may be agreed immediately. Alternatively, the client may instruct the second solicitor to raise queries in relation to the bill. Costs may ultimately be agreed or the matter may be referred to taxation. Another option would be for both solicitors to agree to refer the matter to one nominated costs drawer with an agreement that the fee nominated by the costs drawer will be accepted by all parties. It is sometimes asked how a fee can be agreed in litigation matters when liability has not been determined and it is not known at that point for how much the case will settle. There is no difficulty in valuing a solicitor's work at any point, although the figure he receives if he is paid at the determination of his retainer may differ substantially, being either greater or lesser, from the proportion of the total fee he would have received had he waited to be paid at the conclusion of the case.

"No foal, no fee" arrangements determine if the client moves to another solicitor.

The first solicitor may have accepted