Cosgriff v Isaac Brott & Co

[2008] VSC 515

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 9402 of 2008

MARIE ANNE COSGRIFF	Plaintiff
V
ISSAC BROTT & CO	Defendant

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2008
DATE OF JUDGMENT:	28 October 2008
CASE MAY BE CITED AS:	Cosgriff v Issac Brott & Co
MEDIUM NEUTRAL CITATION:	[2008] VSC 515

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Solicitors – Solicitor’s possessory lien over litigation file – solicitor’s practicing certificate cancelled – whether lien can be maintained – lien determined – order that file be delivered to new solicitors

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr C. Nichol	Slater & Gordon
For the Defendant	Mr J. Levine	Issac Brott & Co

HIS HONOUR:

1. In this case, the plaintiff, Marie Anne Cosgriff, retained the defendant, Issac Brott & Co, as her solicitors for the purposes of conducting litigation on her behalf in this court against the trustees of the deceased estate. The litigation is well advanced.  It was fixed, on 15 August 2008, by the Listing Master for a ten day trial to commence on 17 February 2009.  The firm, Issac Brott & Co, is a practice whose sole principal is Issac Alexander Brott.  I shall refer to him as the solicitor.

1. On 18 September 2008, VCAT ordered that the solicitor's practising certificate be cancelled, effective from 4 October 2008, and that he be not entitled to apply for a practising certificate before 4 July 2009. That order was made following admitted contraventions of the Legal Practice Act 1996 which constituted misconduct and unsatisfactory conduct, within the meaning of those expressions in the statute.

1. Having regard to the provisions of the Legal Profession Act 2004, this order had the consequence that the solicitor became unable to act for Ms Cosgriff.

1. It seems that following this, the solicitor's practice was transferred to a multi-disciplinary practice in which Malcolm Buxton is the principle legal practitioner.  Mr Buxton has said that he was and is ready and willing to conduct the litigation on behalf of Ms Cosgriff.

1. Following the order of VCAT, Ms Cosgriff has instructed Slater & Gordon to act for her in the litigation and the solicitor was so advised on 25 September 2008. He was requested to deliver up to Slater & Gordon his file and documents relating to the litigation.  The response of the solicitor has been to assert a possessory lien over the file for unpaid fees.  The amount of fees to‑date are said to be nearly $257,000 of which about $134,000 remains outstanding.

1. I have been told by counsel on behalf of the plaintiff that she is prepared to provide security for certain disbursements, namely outstanding counsel's fees and accountant's fees in the litigation but that no further security is offered. 

1. Before the court is an application made on behalf of the Ms Cosgriff for an order that the papers be delivered up.  The law in this regard is well‑established.  Where a solicitor is discharged by the client otherwise than for some breach of conduct or misconduct, the solicitor is entitled to maintain their lien.  Where the retainer is determined by the client for misconduct or breach of contract by the solicitor, the lien comes to an end.  Where the solicitor discharges the client for good cause, then the lien becomes a qualified one.  In this type of case, the normal practice, in England at least, is that the court will then order the solicitor, without prejudice to the lien, to yield up the papers requested for the litigation to the replacement solicitor upon an undertaking to that solicitor to allow the former solicitor access to them, and to return them on the conclusion of the litigation. The position is otherwise where the discharge by the solicitor is not for good cause, in such a case the lien comes to an end.

1. Whether it is the client or the solicitor which terminates the relationship is to be resolved in a practical way.  Furthermore, it is clear from the judgments in the Court of Appeal in the Gamlen[1] case, that the power which I am asked to exercise is an equitable one and must have regard to discretionary factors which come into play having regard to all the circumstances of the case. 

   [1]Gamlen Chemical Co. (UK) Ltd v Rochem Ltd [1980] 1 W.L.R. 614

1. The situation which confronts me is, happily, an unusual one.  In my mind I should approach the question on the basis that the solicitor has, by his wrongful conduct, caused himself to be discharged. This is because his wrongful acts have rendered him legally incompetent to continue with the retainer.  I prefer this analysis to that which would have it that it was the client who discharged the solicitor for his misconduct as was the conclusion reached in the Bodycorp Repairers[2] case. 

   [2]Bodycorp Repairers Pty Ltd v Edwards [2007] VSC 124

1. In these circumstances the lien is determined.  It would be altogether contrary to any principle of equity that a solicitor whose misconduct rendered a blameless client bereft of legal representation should nonetheless be permitted to retain the file so that the client was unable to retain fresh representation.  I say nothing of the former solicitors entitled to recover those costs properly incurred prior to his incapacity, it is that he cannot assert the normal possessory lien.

1. I am mindful, too, that this is a case where Mr Brott was a sole practitioner.  The special relationship which must exist between the solicitor and client could no longer exist following the determination of VCAT.  This is not the time for me to consider the proper rate of the solicitor's charges and I do not do so.  Likewise I do not find that the client was entitled to terminate the solicitor's retainer for his non-compliance with the orders of the court in August of 2008. It was contended, too, that for various reasons, the solicitor could not seek to recover his costs but I prefer not to rest my decision upon this.

1. In the result, I will, having regard to the acceptance on behalf of the plaintiff that she will provide security for the outstanding counsel's fees and accountant's fees, order in terms of the application, that the file of Brott and Co relating to the litigation, be delivered up to Messrs Slater & Gordon.

Submissions re delivering up of the file

1. In the absence of agreement I will direct that the documents be delivered up by the end of tomorrow.

Submissions re costs

1. The ordinary costs order will flow, that is to say, the costs of the successful plaintiff of the proceeding, including any reserved costs, be paid by the defendant, the defendant before the court is Issac Brott and Co.

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