Matthew Smith of Kings Chambers reports on the recent decision in Blankley-v-Central Manchester.
A recent High Court appeal has determined that a solicitor's retainer is not
automatically determined by the loss of mental capacity of the client. In the
judgment, Phillips J held that, whilst Yonge v Toynbee  1
K.B. 215 is long accepted authority that a solicitor's authority automatically
and immediately determines upon the loss of capacity of the client, that does
not equate to a frustration of the entire retainer. In that regard, the judge
disapproved the earlier conclusion of Chief Costs Judge Hurst in Findley v
Barrington Jones  EWHC 90130 (costs) that the retainer was
v Central Manchester and Manchester Children's University Hospitals NHS Trust
 EWHC 168 (QB) (05 February 2014), Phillips J noted that if
frustration occurred, any appointed deputy would have to incept a new retainer.
In certain circumstances, of course, that could result in the loss of ability
to recover additional liabilities from the losing party where the client had
previously been funded by way of a CFA..
The judge likened the situation to one where an employee is temporarily
incapacitated or where a company is temporarily unable to provide instructions
due to a temporary absence of directors able to provide instruction. So long as
the hiatus is dealt with sufficiently swiftly, the contract survives. In
Blankley, the claimant had lost capacity on 9 February 2007 and authority was
restored through the appointment of a (then) receiver whose application for
appointment was dated the 26th of Feburary 2007.
Clearly, in order to preserve a retainer in a similar situation swift action is
necessary especially as there can be occasions where there can be some delay
between loss of capacity and a retained solicitors discovery of that fact.
Matthew was instructed on behalf of the Defendant by David Abraham at Clyde & Co.