Is a Deputy personally liable for outstanding WIP?

In the matter of Brassington -v- Knights Professional Services (t/a Knights)[2023] EWHC 1568 (Ch), the Court had to consider whether the wording within the retainer meant that the Claimant, acting as Deputy, was personally liable for outstanding WIP.

The Claimant was a Partner within the Defendant’s firm and was employed as a Private Client Solicitor. The majority of the work undertaken by the Claimant involved acting as a Professional Deputy.

Following provision of the Claimant’s resignation letter to the Defendant, the Defendant claimed that the Claimant was personally responsible to settle the outstanding WIP on several Deputyship matters. The basis for the Defendant’s argument was that the retainer documentation provided to the Claimant (in her professional capacity as Deputy for P) from the Claimant, provided terms that the Claimant be personally responsible for outstanding costs (i.e. those that remained outstanding following assessment and costs which were simply unbillable). Furthermore, the Defendant refused to release the outstanding Deputyship files until the outstanding WIP had been settled.

The Claimant sought a declaration in the following terms:

(1) Mrs Brassington is not personally liable to pay for time recorded on any deputyship file which cannot properly be billed to P.

(2) Knights is not entitled to a lien over any deputyship file in respect of claims for payment for time recorded on a file which cannot properly be billed to P.

(3) In the alternative (and only if and insofar as may be required), orders under s. 70 of the Solicitors Act 1974 for each of Knights’ bills of costs set out in the schedule to the claim form to be assessed.

(4) An order under s. 70 of the Solicitors Act 1974 that no action on any bill may be commenced until such assessment is complete.

(5) Further or other relief.

(6) Costs on the indemnity basis.

Following representations on behalf of the parties, it was clear that the issue to be determined was how the wording within the engagement letter should be interpreted.

The Judge agreed with the Claimant in that she was not responsible for the outstanding WIP and stated at paragraph 74 that:

“…I have no hesitation in preferring the competing submissions of Mr Berragan (representing Mrs Brassington). In my judgment, on the true construction of the engagement letters, and for the reasons which Mr Berragan has so persuasively given (which I do not propose to repeat in full, having previously set them out in detail in this judgment), Mrs Brassington was contracting solely as agent for P. I further find that she accepted no personal liability for Knights’ remuneration or expenses.”

Thereafter at Paragraph 79 that:

“I do not accept that, by her standard deputyship letter, Mrs Brassington, still less her family co-deputies, were assuming any personal liability for any irrecoverable remuneration and expenses incurred by Knights, as Mrs Brassington's employer, and the entity through which she was discharging her deputyship responsibilities, and that they were doing so without any recourse against P personally or their estate. Mr Kelly submits that this is what Mrs Brassington agreed to by the terms of her standard deputyship letter; and that she persuaded her family co-deputies to do likewise. However, Mrs Brassington's standard deputyship letter says nothing expressly about the capacity in which she is appointing Knights to act on her behalf, and with her, in connection with her deputyship. Nor is there any shred of evidence that Mrs Brassington, or anyone else at Knights, ever informed any of the family co-deputies that the true meaning and effect of Mrs Brassington's standard deputyship letter was that they were assuming any personal liability to Knights, so those co-deputies certainly never gave their informed consent to the assumption of any such supposed personal liability.

This matter raised a unique issue and highlights the practical relationship between a Deputy and a Protected Party. In the case above, it appeared to be the case that the Defendant attempted to suggest that the Claimant (Deputy) was the Client as oppose to the Protected Party – this is clearly not the case. The role of Deputy is one of the most important roles within the legal profession and a conclusion contrary to what was reached, would have, in my opinion, severely damaged the profession overall.

For the full case, please see here.

Karl Robson can be contacted here.

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