Practice and Procedure


PUBLISHED April 29, 2003

It was quite plain from the evidence that the defendant solicitors had never been retained to act for the claimant personally.Action by the claimant ('M') for damages for professional negligence against the defendant solicitors ('Olswang'). The only issue in the proceedings was whether there had ever been a retainer between M and Olswang. In 1986 a company owned and controlled by M ('Munro') acquired substantially the whole of the issued share capital of another company ('Apex'). M caused various third parties to be appointed as directors of Apex. In due course, M alleged that those directors had conspired to injure both Munro and Apex. After regaining control of Apex, M acting on behalf of Munro and/or Apex, instructed Olswang in February 1990 to commence proceedings against the alleged conspirators. M also alleged that: (i) at that time he had instructed Olswang to act for him in his personal capacity; or (ii) Olswang had subsequently agreed to act for him in that regard. In late 1990 Munro collapsed and Apex was sold by administrative receivers acting on behalf of its debenture holders. Both companies later went into liquidation and were dissolved. M had personally guaranteed the liabilities of both Munro and Apex and was made bankrupt. M now alleged that Olswang had been negligent in failing to advise him to take an assignment of Apex's cause of action against the conspirators, which cause of action had since been lost as the result of Apex's dissolution. Olswang argued that M was required to pay to them a substantial amount on account and that M knew that, but never provided the required funds. Olswang was therefore never retained.HELD: The evidence was all clear and one way. There was no suggestion of any conspiracy action having been brought or contemplated on behalf of M personally in 1990 or at any time thereafter. M knew that Olswang would not act on his behalf unless he paid a substantial amount of money on account. M never paid any amount on account. It was quite plain that there was no personal retainer, either express or implied, between M and Olswang.Claim dismissed.

[2003] EWHC 721 (QB)