CONTRACTS — contract between two solicitors for litigation matters to be transferred from one to the other — promise to pay half “profit costs” received after deduction of payments to litigation funder for “funding and other services” — dispute about amount to be paid — no evidence of amount of payments to litigation funder — onus of proof — breach of contract not proved
CONTRACTS — solicitor claims to have retained another solicitor to recover costs from opposing party in litigation — retainer not proved
EQUITABLE LIEN — whether former solicitor had a lien over costs paid by opposing party in litigation to current solicitor — lien inconsistent with contract — waiver and release of lien by deed poll — notice of lien not pleaded or proved — relief not available without notice of lien
FIDUCIARY OBLIGATIONS — whether fiduciary relationship arose where no retainer and no express trust — fiduciary obligation inconsistent with contract
Quick Take
1Where a contract between solicitors provides for a payment calculated by deducting specified amounts from costs received, the party alleging breach bears the onus of proving the quantum of the permissible deductions and that the payment made was insufficient; the court will not shift that onus merely because the defendant is better placed to access the evidence, absent a proven breach.
2An equitable lien (solicitor's 'fruits of the action' interest) must accommodate itself to the terms of an existing contract between the parties; relief to enforce such a lien requires proof that notice of the lien was given to the party against whom enforcement is sought before the relevant funds were paid away.
3A fiduciary obligation will not be superimposed on an arm's-length contractual relationship where the claimant managed its risk through contractual protections, as the ability to manage risk through contract is the antithesis of the vulnerability required to ground a fiduciary duty.
