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Solicitor v counsel trial calls into question ‘barrister’s lien’
An application addressing the costs owed between a solicitor and a counsel has asked the Supreme Court of Queensland to consider granting a “barrister’s lien”.
Naomi Neilson
In a dispute that has escalated to the point of a Magistrates Court proceeding, counsel David Laws launched proceedings against principal solicitor Ian Thompson over large amounts of costs owed to the first lawyer. In submissions for the Queensland Supreme Court, Mr Laws questioned whether a solicitor’s lien should be granted to barristers.
It was submitted to the court that it is “not necessary” to have a contractual relationship as a conditional precedent to the existence of the lien. Reliance was also placed on the analogous position of a liquidator who has an equitable interest over property.
“There are a number of Australian authorities that recognise a barrister may have lien over the ‘fruits of the action’, which would include a costs order. However, none of the cases engage in the detailed analysis of the position, nor are they clearly determinative of the issue,” the justice noted when the issue of a barrister’s lien was mentioned.
The applicant relies upon the argument that, under the circumstances, a barrister’s lien secured Mr Laws’ entitlement to fees to be paid directly from the administration to him, including an amount of interests and the costs of the enforcement.
In further submissions, Mr Laws claimed the contention that an equitable lien may not be confined to relationships that are defined by contract or rely upon a contractual relationship to their existence. Further, the types of equitable liens are not limited by a specific class or category and may arise in various circumstances.
“A ‘barrister’s lien’, therefore, is not excluded from being recognised by the court based on this general principle. However, whether one will be recognised in a particular case depends on [the] circumstances of each case,” the justice explained.
Based on the facts before the Supreme Court, there was not enough evidence to grant a barrister’s lien and it was not necessary to conclusively determine whether solicitor’s lien is available in respect of a barrister.
“However, to the extent that there is some support in the authorities for a barrister’s lien, it appears it may be limited to where counsel receives a direct brief from a client or where a solicitor was not directly liable for counsel’s fees.
“This is to be contrasted to the current circumstances, where the retainer agreement expressly makes the solicitor directly liable for counsel’s fees and counsel obtained a court judgement on that basis,” the court documents read.
For more information on the hearing and the facts around the judgement, the case can be found on AustLII under Williamson & Williamson v Pay [2020].
Naomi Neilson
Naomi Neilson is a senior journalist with a focus on court reporting for Lawyers Weekly.
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