Baker Johnson v Jorgensen [2002] QDC 205

District Court of Queensland|2002-07-26

[1] This is an appeal from a decision of a magistrate who on 13 February 2002 dismissed the appellant's claim against the respondent. The appellant is a firm of solicitors, and the respondent had retained the appellant to act in connection with a claim for damages in the District Court at Brisbane for personal injuries suffered in the course of her employment. That claim was ultimately settled on terms that the respondent would be paid $10,000 inclusive of costs but after deducting the amount refundable in respect of workers compensation: Ex 2. The $10,000 was paid to the appellant's trust account; of that sum $334.40 was refunded to the Health Insurance Commission on behalf of the respondent, and the balance was applied by the appellant towards the payment of the amount payable to it by the respondent for professional costs and outlays. The total amount claimed by the appellant for costs and outlays was $18,616.65: Ex 1.[1] Accordingly the appellant sued the respondent for the balance, $8,951.05.

[3] The appellant's argument before me was essentially a repetition of the argument before the magistrate; that the proceedings had been resolved successfully in that some amount was recovered, and that accordingly the appellant was entitled to charge fees calculated in accordance with the written retainer agreement which had been signed by the respondent. It was submitted further that the meaning of the expression "no win no fee" was defined for the purposes of the relationship between these parties by the terms of that retainer, which among other things provided expressly that the appellant's costs and outlays "shall be payable to [the appellant] at the settlement ... of this action."[2] Accordingly it was submitted that the magistrate had erred in the construction placed on the terms of the retainer, and on the true or properly interpreted terms of the retainer the appellant was entitled to succeed.

[4] I think it is necessary to go into a little more detail about the facts. The respondent suffered injuries in the course of her employment on 27 June 1995, and for a time received Workers Compensation. There was some difficulty with the claim for Workers Compensation, and the respondent consulted a solicitor, Mr Shepherd, who was able to resolve that matter: p 12. Mr Shepherd subsequently wrote enquiring whether she wanted to proceed further, that is presumably with a common law claim, and she replied that she did not. Subsequently and presumably before the limitation period expired the file came to be transferred to the appellant, possibly as a result of the acquisition by the appellant of Mr Shepherd's practice.[3]

[5] The appellant contacted the respondent who again indicated that she was not interested in pursuing the matter. She then spoke to a Mr Poole, of the appellant, and agreed to go ahead on the basis of "no win no fee": p 13. She did not sign anything at that stage, and said she did not sign anything until December (presumably 1998) which she claimed to have signed the "Authority to Act" document under duress, because she was told that if she did not sign the appellant was going to pursue her for the costs that had already been incurred. Subsequently the case was prepared for trial, she attended the doctors that she was asked to attend, and she attended a conference with counsel on 11 February 2000, when she agreed to an attempt being made to settle the matter.[4] Following some negotiations, one week before trial on 2 March 2000 the claim was settled on the basis referred to earlier.[5]

[6] A memo by the solicitor handling the matter (part of Ex 2) indicates that the respondent at a conference to discuss settlement was complaining "that the only people who are going to benefit out of her claim is Baker Johnson". She had asserted then that the partner to whom she spoke at the time the file was taken over from Mr Shepherd had told her that "this would not cost her anything". The memo continued: "At the time we inherited the file from Shepherds we made an election to proceed with her matter believing that she had good grounds to succeed and it is not our fault that as the matter has been investigated her case has become worse and worse." She was warned that if the matter went to trial "she would need to receive from the court $25,000 at minimum to offset the costs that would be incurred additionally for those that had been incurred so far. I wasn't even prepared to say that the $10,000 would cover all of her legal bill to date which made her even more ballistic than she was already. At the end of the day she seemed to be suggesting that she wasn't about to go to court for two days next week, lose two days of wages just "to line Baker Johnson's pockets". I said to her that was her choice. I was only interested in trying to find out whether she was going to go to trial on Tuesday or she was going to consider accepting the offer. She is clearly bitter and upset by how she seems to believe ... that the only reason that we proceeded with this matter was so that Baker Johnson could line their own pockets. I said to her that seemed to be inappropriate given that, at the end of the day Baker Johnson stood to lose as well because the amount of $10,000 would not even cover our costs." The following day she gave instructions by telephone to accept the offer and asked for an itemised bill. Those instructions were acted on and the offer was accepted.

[7] On 9 March 2000 a member of the appellant wrote to the respondent recording what had happened and saying inter alia:

"We inherited this file from Ian Shepherd and confirmed to you that we were prepared to continue with this matter on a "no win no fee basis" without requiring one dollar of contribution from you to the process of the preparation of this matter for trial. All expenses required have been met by this firm on your behalf. As the matter progressed the evidence in your favour was offset by the evidence against your case and at the end of the day the decision taken by you to accept the only offer that had ever been made in this matter was, in our view an appropriate decision. ... We have at all material times acted in your best interests and your case was simply beaten by the evidence ..."[6]

[8] Someone from the appellant firm appeared for the appellant at the trial, while the defendant appeared in person. There were a number of unsatisfactory features of the way in which the trial was conducted. It appears from the transcript that the appellant's representative was allowed to ask leading questions in examination in chief: See for example p 7. A bundle of correspondence and other documents was tendered and became Ex 2, but the transcript did not record what the documents comprised in the bundle were: at p 9. As a result, there was some disagreement between the representatives of the parties before me (neither of whom had been at the trial) as to whether a particular document had or had not been tendered as part of Ex 2. Ultimately I concluded that it was probably the document referred to at the foot of p 9 which the appellant's representative at the trial had decided it was not necessary to tender, although even that is uncertain because the transcript does not record what that document was either. From my point of view it would have been more helpful had each of the documents that was tendered been made a separate exhibit and then clearly identified in the transcript.

[9] The defendant did not put any part of her case to either of the plaintiff's witnesses, although one of them, Mr De Costa, was in a position to comment about the proposition that bad advice had been given in connection with the settlement, and that case ought to have been put to him. The defendant had given particulars of the rather sketchy defence which she had filed, by a letter dated 14 January 2001, which however was apparently not before the magistrate. Both parties agreed to its being put before me, and for convenience I made it Ex 2 in the Appeal.

[10] The respondent was called as a witness by the appellant: p 11. That is permissible[7], though unusual, and the magistrate required the respondent to give first her own version of events, and then gave the representative of the appellant the right to cross examine: p 12. In my opinion this was, with respect, an error on the part of the magistrate: the appellant having elected to call the respondent as a witness was restricted to leading evidence in chief (or in re-examination) but was not allowed to cross examine the respondent[8]. The appellant having elected to call the respondent as witness should have then been restricted to leading evidence in chief from the respondent, then the respondent should have been given the opportunity to have her say in the witness box (in effect cross examining herself) and then the appellant should have been permitted to re-examine, subject to the usual restrictions applying to re-examination. In practice what happened was that the magistrate proceeded as if the respondent was giving evidence on her own behalf.

[11] The respondent was cross examined, at times vigorously[9]. She was faced with the proposition that she had won because she had received $10,000, but her response was that from her point of view they had received $10,000, and she did not believe she won because she did not get anything: p 19. At one point she was asked whether there was any threat of bodily harm or actual bodily harm in connection with the execution of the authority, and she acknowledged that there was not. The response by the representative of the appellant was (at p 21): "so you acknowledge that there was no duress. OK." Apart from the comment, which ought not to have been allowed during cross examination, this assumes something about the law of duress with which I do not agree[10].

[12] The real situation was exposed two questions later:

"How did he obtain that signature? Did he tell you that you would owe money if you didn't [sign]?-- Yes."

She said she did not know whether she signed a client agreement with Shepherd and Associates, and there was no evidence that she ever did. It was put that when Mr Shepherd was acting for the respondent the file -

"was run on the same basis [as] ours and due to the fact that we bought it like buying any other asset, automatically you owed us money because we bought it. You agreed to us taking instructions; is that true? -- If I owed Mr Shepherd money, he never let me know or sent an account or -

No, that's because it was run on the same basis as ours and by the time that he gave us the file there was money already incurred in running your file; do you understand what I am saying? -- But how can that be? That he can hand over a file that, I don't know, sort of, its my file, and he can hand over an account that I know nothing about".

[13] Well might she ask. If Mr Shepherd was running the file on a "no win no fee" basis there was no money owing until either he had won[11] or the respondent did something to give him an entitlement to recover on a quantum meruit. There is no evidence or even a suggestion that either of those things had occurred prior to the time when the appellant "bought" this file, and in those circumstances there was plainly no money owing so there was no debt the benefit of which could be assigned[12]. It may be that the work done potentially had some value,[13] but that is a different matter, and assumes that such a transaction on the part of the former solicitor did not amount to a wrongful repudiation of the contract of retainer entitling the client to terminate it without liability.[14] In my opinion much of what was put to the respondent about this was wrong.

[14] I have some difficulty in understanding the basis upon which the magistrate rejected the respondent's evidence that the retainer of the appellant was on the basis of "no win, no fee, no cost to me." That was the evidence of the respondent, and it was uncontradicted. She did not resile from it in her cross examination: See p 25. In circumstances where the magistrate found that all the witnesses before him gave honest and reliable evidence and their credibility was not in question (decision p 2), I cannot see how he could properly have rejected this part of the respondent's evidence. Having read the cross examination of the respondent, it does not seem to me that anything emerged which would give me any reason to doubt her reliability, and the magistrate's general acceptance of her evidence is entirely unsurprising.

[15] The magistrate found on the evidence that the original retainer of the appellant was on a "no win no fee" basis. That was admitted by the appellant[15], and was essentially the appellant's case both before the magistrate and before me, although before me there was an attempt to interpret that by reference to the Authority to Act document. But it is apparent that that was not signed until some time after the appellant was retained, and it is appropriate to consider first the effect of the original retainer, that is the effect of a retainer which is simply said to be on a "no win no fee" basis. Obviously in a particular case what that expression means may be the subject of express definition by agreement of the parties, but as the magistrate decided the case on the basis of the interpretation of that expression without any such clarifying agreement between the parties, that is the logical starting point of my analysis.

[16] It was submitted on behalf of the appellant what occurred here was a "win" because, as between the plaintiff and the defendant in the earlier proceedings, the plaintiff had recovered from the defendant, and the question of what is a win has to be looked at as between the parties to that proceeding. That was not the way the defendant looked at it: from her point of view she got nothing out of the District Court action, since any money recovered went to the appellant. If the appellant's argument is correct, the outcome of the District Court proceeding is that the respondent is out of pocket by over $9,000. From her point of view it is understandably difficult to characterise that as a win.

[17] I am unaware of any authority on the correct interpretation of this expression, and neither advocate was able to assist me with any[16]. In Adamson v Williams [2001] QCA 38 the Court of Appeal found it "unnecessary to decide whether "win" includes the reaching of a settlement in which the client might obtain some damages over and above his obligation for fees." [21] (emphasis added). The terms used by the Court suggest that their Honours would not have regarded a less favourable settlement as a win. In my opinion it is a matter of determining objectively the meaning of the expression, by reference to what ordinary people in the position of the parties would have understood it to mean.

[18] In my opinion the construction placed on the expression by the magistrate was correct. I do not consider that an outcome can properly be characterised as a win from the point of view of the respondent unless the respondent actually recovers something herself. In my opinion, properly understood, the expression "no win no fee" is a succinct way of saying "the client will not have to pay the solicitor other than from the proceeds of the claim". It is not necessary, for present purposes, for me to consider whether the expression implies that there will be no liability on the part of the client for any costs to any other party to the proceeding[17]. I am only concerned with the position as between the solicitor and the client. In my opinion the ordinary meaning and true construction of a retainer on a "no win no fee" basis is that the solicitor is saying in effect: "you will not have to pay me any fees except out of whatever I can recover for you." The effect is that the client will not have to pay anything out of the client's own pocket. On the basis of the retainer found by the magistrate therefore his decision was correct.

[19] The next issue therefore is as to the effect of the "Authority to Act". Relevantly that Authority specified rates for charging for a partner, a solicitor or a managing clerk which were said in the Authority to be in excess of the court scales, and dealt with the question of when the costs and outlays were payable in the following paragraph:

"I/we hereby acknowledge that our costs and outlays will be carried by you, for so long as you act on our behalf in the matter. All professional costs and outlays will be paid by me/us at the conclusion of the action or when we terminate your retainer, whichever is the sooner. It is hereby agreed that you should be entitled to charge interest on any costs and outlays outstanding from time to time at a rate which is 2% greater than the interest currently being charged on commercial overdrafts. Such interest shall be due and payable in relation to all outlays as and from the date of the expenditure and whether or not invoiced. All such costs and outlays shall be payable to you at the settlement by you of this action."

[20] Counsel for the appellant emphasised the last sentence in that paragraph, and submitted that the effect of it was that if and when the action was settled all the costs and outlays payable in accordance with the rates agreed to in the document would become payable by the respondent. The difficulty with that submission is that that sentence does not stand alone. It ignores the second sentence in that paragraph, which is, in my opinion, on its face plainly inconsistent with a retainer on a "no win no fee" basis, whether or not settlement which the amount recovered is less in than the legal costs is counted as a win. On the face of the second sentence in this paragraph all professional costs and outlays are payable when the action is concluded, win or lose. In my opinion the Authority to Act on its face does not provide a "no win no fee" retainer on any basis; it is plainly inconsistent with any such retainer. The last sentence merely confirms that a settlement is to be treated as a conclusion of the action.

[21] In the present case, the magistrate found (on uncontradicted evidence) that the original oral retainer of the appellant was on a "no win no fee" basis. It follows that this document, if it was effective, operated as a variation of that retainer. A retainer is a matter of contract[18], and a contract can be varied by a latter contract, subject to the ordinary rules of contract law[19] and subject to any other considerations affecting the validity of that latter contract. The first difficulty that arises for the appellant in relation to the validity of the Authority to Act document, as a contract varying the original retainer, is that it is not apparent that the appellant gave any consideration for the variations; all of the changes effected by that document appear to be changes in favour of the appellant. Having already agreed to act on certain terms, it was not open for the appellant unilaterally to refuse to act other than on different and less favourable terms[20].

[22] When asked what consideration was given for this as a contract of variation, counsel for the appellant did not identify any, although he submitted that it was not a variation. If there was an earlier contract of retainer then this, if effective as a contract, was a variation of that contract. But in my opinion it was not effective as a variation because there was no consideration given for it. Accordingly the original oral retainer remained in force, and the terms of this document are irrelevant to the interpretation and effect of that retainer.

[23] If I were wrong about that, it is necessary to consider the issues raised by the defence, including that that contract was procured by duress. Plainly this was a reference to economic duress.[21] It is clear from the uncontradicted evidence of the respondent at the trial that the appellant was refusing to continue the retainer, and was threatening to sue for costs (or at least outlays) incurred to date (which so far as I can see the appellant then had no right to enforce against the respondent) unless the appellant signed the document. That was the respondent's case as particularised[22] and supported by uncontradicted evidence at the trial[23]. It was not put to either of the witnesses called by the appellant, because neither of them was in a position to respond to it. The appellant's response to that defence was that there was no duress because the respondent was not put in fear of bodily harm. That is not a good answer to an allegation of economic duress. On this evidence the magistrate could and should (if necessary for the decision) have found that there was economic duress[24]. If this were an otherwise valid contract of variation, it was on the evidence induced by economic duress and was therefore voidable[25] and has been avoided.

[24] If that were not the case, it seems to me that there would have been other difficulties for the appellant. If the appellant's true intention was that the retainer be on the terms of the Authority to Act, to describe that as a retainer on a "no win no fee" basis was misleading and deceptive, so that the appellant was in breach of the Trade Practices Act. The respondent would therefore be entitled to set off the appellant's liability for damages for breach of that Act so as to extinguish the appellant's claim (indeed the respondent may be entitled to relief under s 87, avoiding the written retainer.) There was probably also negligence, breach of contract or breach of fiduciary duty in advising the respondent that the appellant was acting on a "no win no fee" basis in such circumstances.

[25] The real problem that the appellant has is that the Authority to Act document does not explain or modify or clarify the "no win no fee" retainer; it is directly inconsistent with it. It is simply an agreement that payment of fees and outlays will be postponed until the action comes to an end (whether by settlement or otherwise) or the client terminates the solicitor's retainer. Since one or other of those things must happen eventually, fees will become payable eventually, and there will be no circumstances where there is "no fee". Since it has consistently been the appellant's case that the retainer was on a "no win no fee" basis, this document cannot be relied on by the appellant in support of that case, and, had it abandoned that case, it would have been faced with all these difficulties.

[26] Apart from all these difficulties, there is the further difficulty for the appellant that, if its arguments are correct and it is entitled, as a consequence of the settlement made, to recover in excess of $9,000 from the respondent, that settlement was in truth disadvantageous to the respondent. It may have been a "satisfactory" settlement in the sense that it was the most that could be extracted from the defendant by negotiation and was more than was likely to be obtained as a result of the matter going to trial, but (if the appellant's arguments are otherwise correct) it would not have been difficult to negotiate a settlement which was more favourable to the respondent than the outcome contended for by the appellant from this settlement.

[27] If the respondent's claim against the employer had been settled on the basis that the action be discontinued and there be no costs paid by either party to the other, the respondent would not have had to pay the other party anything, and would not have had to pay the appellant anything. That would not be a "win" on any interpretation of that term. If WorkCover was prepared to pay $10,000 for the plaintiff to go away, it would undoubtedly have agreed to allow the plaintiff to go away for nothing, so there is no reason to doubt that such a settlement could have been achieved had the appellant sought to negotiate it. In those circumstances, it was the appellant's duty to the respondent as its client to warn the respondent that the settlement offered by WorkCover would leave the respondent substantially out of pocket in terms of her liability for costs to the appellant, but that a more favourable settlement could easily be negotiated which would cost the respondent nothing. But the appellant did not do that.

[28] The appellant did not give any advice as to the extent of the respondent's liability to the appellant for costs, and advised the respondent in effect that her only choice was to take the matter to trial where the financial outcome was likely to be worse, possibly much worse. That was the advice identified in the particulars as bad advice. If the appellant's arguments on the appeal are correct, it was bad advice. Indeed it involved the appellant putting its own interest ahead of the interest of its client, not a happy position for a fiduciary.[26] In such circumstances it would be plainly in breach of its fiduciary duty and liable for damages or equitable compensation[27] which could be set off against the appellant's claim so as to extinguish it (it was probably also negligent, and therefore has by its negligence forfeited its entitlement to recover fees.[28])

[29] No doubt of course the practical reason why such advice was not given at the time is that the possibility of such an outcome did not at the time occur to the representative of the appellant who was advising the respondent. That was because he, like the magistrate, correctly appreciated that the effect of a retainer on a "no win no fee" basis was that the respondent was not liable to pay to the appellant more than the amount recovered from WorkCover.[29] But had it been otherwise there would have been a breach of fiduciary duty, which would have prevented the appellant from recovering.

[30] Accordingly the appeal must be dismissed with costs. The respondent sought costs on an indemnity basis, submitting that the appellant had pursued the appeal in circumstances where it ought to have known that it was bound to fail. It was submitted in effect that the appeal was tantamount to an abuse of process. Although there are a number of reasons why the appellant must fail in this claim, I do not think the claim was inarguable, and there is the consideration that the precise meaning of a retainer on a "no win no fee" basis does not seem to have been the subject of an authoritative exposition. In those circumstances it cannot really be said that the appellant's position was unarguable, or contrary to established authority, or clearly unjustified. There is no suggestion of any collateral purpose to this appeal. There is not even any suggestion that this is a test case, although I do not think that that in itself would justify a departure from the ordinary order as to costs. It is unfortunate that the respondent who has done nothing wrong should be vexed with litigation of this nature, but I do not think the circumstances justify the serious[30] step of ordering that the costs be assessed on an indemnity basis.

[31] Accordingly the appeal is dismissed with costs but I will not order that they be assessed on an indemnity basis.

[1] The quantum of the appellant's account was not in issue.

[2] The document "Authority to Act -Trust Authority Personal Injuries" signed by the respondent was apparently put in evidence at the trial, and is mentioned in the magistrate's reasons, but I could not find the document on the court file. The parties by agreement put a copy of this document before me and it became Exhibit 1 in the appeal.

[3] At one point it was put to the respondent that the appellant had "bought this file": p.22 The true nature of such a transaction was not explored in evidence or in argument. It is unnecessary to decide whether the benefit of a contract of retainer of a solicitor is a chose in action capable of assignment.

[4] Transcript p 13; and see memo 11 February 2000 within Ex 2.

[5] Memorandum 2 March 2000 within Exhibit 2 . Under cross examination Mr De Costa appears to have conceded that it may have been that a final decision was made on 9 March 2000, although that appears to have been the trial date. The actual date of settlement is not crucial.

6 Letter 9 March 2000 appellant to respondent within Ex 2.

[8] Forbes, "Evidence in Queensland" (1992) p 48.

[9] Some parts of the cross examination seem quite aggressive: see p.22. There are a series of statements made, interspersed with questions, only a few of which are associated with answers. The impression is that only rarely did the appellant's representative pause long enough to enable the respondent to answer.

[10] He was apparently relying on the rule in Skeate v Beale [1841] EngR 142; (1841) 11 Ad & E 983, but that is no longer good law: Goff & Jones "The Law of Restitution" 4th Ed 1993 p 242.

[11] Whatever constitutes a win, that had not occurred at the time when he "sold" the file to the appellant.

[12] The contingent right to future payment may have been assignable in equity, but not enforceable until the contingency was satisfied: Federal Commissioner of Taxation v Everett [1980] HCA 6; (1980) 143 CLR 440 at 450.

[13] See McGowan v Commissioner of Stamp Duties [2001] QCA 236; Browell v Goodyear [2000] TLR 735.

[14] A contract for professional services by a solicitor is inherently not assignable: McGowan (supra) at [14].

[15] Letter 9 March 2000 appellant to respondent within Ex 2.

[16] There are a number of decisions referring to "no win no fee" retainers, but none that I have found which is directly on point. It was not argued that a result of such a retainer is that nothing is recoverable by the solicitor: cf Awwad v Geraghty & Co [2001] QB 570.

[17] Some have expressed the view that the expression "no win no pay" may imply that nothing is payable to anyone in the absence of success in the action : New South Wales Law Society (1997) 35(1) LSJ 80.

[19] Cheshire and Fifoot "Law of Contract 7th Aust Ed 1997 para [22-5]: hence consideration is required.

[20] At least in the absence of reasonable notice and (less clearly) without good cause: McGowan (supra) at [10]; Underwood v Lewis [1894] 2 QB 306.

[21] The point is clarified in the particulars.

[22] Letter 14 January 2001, Ex 2 in the appeal.

[23] p 13, p 21; at p 22-3 it appears to have been put to her that such a thing did happen, so it may have been common ground.

[24] It is economic duress to require additional consideration to perform an existing contractual obligation: Carr v Gilsenan [1946] St R Qd 44. A fortiori for a solicitor to threaten to sue for money not owing unless the client agrees to amend the retainer in the solicitor's favour.

[25] Alternatively any money payable under the amended retainer would be recoverable as money had and received, and hence a set off would be available.

[26] Bristol & West Building Society v Mothew [1996] EWCA Civ 533; [1998] Ch 1; [1996] 4 All ER 698 at 711.

[27] Cordery on Solicitors (10th Ed) para J [472].

[28] Cachia v Isaacs (1985) 3 NSWLR 366 at 376.

[29] Hence his comment that the appellant "stood to lose as well because the amount of $10,000 would not even cover our costs." : Memo 2 March 2000 in Ex 2.

[30] The Court of Appeal has recently cautioned against the too ready making of an order for costs on an indemnity basis: Di Carlo v Dubois & Ors [2002] QCA 225.

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