"Invoicing We will invoice you on a monthly basis and we require our invoices to be paid within 7 days of receipt. Thereafter, following 7 days' notice, we may suspend work on your matter until payment is received and charge you interest... We are entitled to retain all papers until ourfees are paid in full "
"Article 2(1)(a) and (c) and article 3(a) and (c) do not apply to... i) a liquidator of a company which is being wound up in England and Wales or Scotland under Parts IV or V of the 1986 Act; or ii) a trustee ofa bankrupt's estate under Part IXofthe 1986 Act "
"1. Subject to paragraphs 6 and 9 of this article, upon recognition of a foreign proceeding, the foreign representative has standing to make an application to the courtfor an order under or in connection with sections 238, 239, 242, 243, 244, 245, 339, 340, 342A, 343, and 423 of theInsolvency Act 1986 (29) and sections 34, 35, 36, 36A and 61 of theBankruptcy (Scotland) Act 1985 "
"[Capacity] denotes the characteristics which a person has and which give him an ability to sue or be sued on the claim or restrict that ability. "
'Where a solicitor entitled to a lien takes from his client security upon property already included in the lien, or where such an one takes a security which gives time (say for a period Q/ three years), or which gives a right [o interest which would not otherwise be payable, it may well be that the lien is gone. In such case there is a new arrangement between creditor and debtor which ...is incompatible with the retention of the lien. The existence of the security is inconsistent with the continued existence of the lien. See also Curr_y v Rea [1937] NI 1 where a charge over the same property was held to be inconsistent with the lien so as to give rise to waiver of the lien; (3). In Clifford Harris no. 1, David Richards J stated at [17]: "There are two key questions, as reflected in the passage cited above from Cordery: is the security inconsistent with the solicitor's rights at common law and under section 73, and, because of the fiduciary relationship between them, did the solicitor inform the client that he was reserving those legal rights. If it is inconsistent, it will be taken to waive the solicitor's other rights, unless he has reserved them. "There is clear authority that a charge on the same asset as that covered by a lien or right to apply for a charge will displace the lien or right. The decision of the Northern Ireland Court of Appeal in Curry v Rea [1937] NILR 1 is authority in respect of a possessory lien, and puts it on the basis of either waiver or merger. Waiver of the right to apply for a charge is the effect of Groom v Cheesewright. There is an obvious inconsistency between an express charge, and a lien or right to apply to a court for a charge, on the same asset. (4). If, on taking security, the solicitor is to preserve his common law and statutory rights then he has to reserve them: see Re Morris[1908] 1 KB 473 , a majority decision of the Court of Appeal (at pages 475, 479, 481) Re Taylor,Stileman & Underwood [1891] I Ch 590 ("Re Taylor") (at pages 597 and 601), Clifford Harris no. 1 (at [17] and [28]). There is a controversy as to whether the reservation can be implied as well as express to which I will turn later; (5). There is a helpful analysis of the earlier authorities in Clifford Harris no.2 by Mr Christopher Nugee QC, from which the following principles can be ascertained: (a) The doctrine of waiver applies equally to rights under s.73 as much as it does the common law lien [24]-[25]; (b) There was previously some controversy as to whether the absence of a reservation was sufficient in itself to amount to a waiver, or whether there was a further requirement of inconsistency. The majority of the Court of Appeal in Re Morris (Buckley LJ, with whom Lord Alverstone CJ agreed), held that an express or implied reservation was necessary, where the solicitor took security which was inconsistent with his general lien. Further in Re Taylor, the Court of Appeal unanimously held that a firm of solicitors had lost their retaining lien over their client's papers by taking a promissory note from the client and her husband with interest at 5%, and a charge over a client's life policy. The way in which each member of the Court of Appeal expressed themselves, did not suggest that the lien will be destroyed in every case where the solicitor takes any substantial security [33]. The fact is that each member of that Court referred to the decision of Sir John Leach MR in Roberts v (1830) 8 LJ (OS) (Ch) 137, where a solicitor lost his lien by the taking of a promissory note. In that case the court regarded as crucial the fact that the promissory note would entitle the solicitor to claim interest which he would not otherwise have been able to claim (c) Following the Court of Appeal decision in re Taylor and the interpretation placed upon that decision by the majority in Re Morris Mr Nugee QC concluded that a solicitor will only be held to have waived his lien if he takes a security which is inconsistent with the lien [38]; (d) What is meant by 'inconsistency' is that there is some feature of the security which is incompatible with the lien (such as time to pay and retaining the client's papers in the meantime) such that the two rights cannot sensibly have been intended to subsist in parallel [43]; "I accept that if both solicitor and client positively intend that the solicitor's existing rights will be unaffected by the taking of the security, that will be effective to preserve them. But that will not usually be the case unless the solicitor explains the position to the client. It is not in Iny iudgment sufficient to defeat a waiver that the solicitor had no positive intention to waive: if there is an inconsistency, the solicitor will be regarded as having waived his rights unless he expressly reserves them. " [40] [Emphasis added]. It is to be noted that at [40] the Deputy Judge there limited reservation to express reservation, whereas in Re Morris at p477 Buckley LJ (with whom Lord Alverstone CJ agreed) refers to a solicitor who "expressly or, having regard to all the facts, impliedly reserves his lien ", and at page 479 cited with approval Lindley LJ's statement in Re Taylor that "whether a lien is waived or not by taking a security depends upon the intention expressed to be inferred from the position of the parties and all the circumstances of "The nub of [Mr Nugee QC's] analysis is in paras 38-40 where he explains, on the basis of In re Taylor[1891] 1 Ch 590 but also subsequent authorities, that even a solicitor, with the duty he owes to explain matters to his client, will not be taken to have waived his lien unless he has done something inconsistent with it; that an inconsistency will, however, be more readily found in the case of a solicitor because of that duty owed to his client; that the test of waiver is objective; and that such objectivity allows for the position where both parties positively intend that existing rights will be unaffected by the taking ofsecurity or where it is made plain that the rights of lien are reserved. The inconsistency in Clifford Harris no.2 arose from the fact that the charge included provision for interest at 8%, and that it was well established that a security which makes provision for interest that would not otherwise be due is an example of inconsistency ([44]). On that basis, the learned Deputy Judge held at [51] that the s. 73 right was waived; "Before leaving reviver, however, it seems to me to be potentially relevant in another way. On the analysis I have adopted, the principle is that a solicitor is effectively presumed to intend to waive his rights whenever he takes that a security that is in any way inconsistent with them. However. since the ground for assuming waiver is the taking of inconsistent security, I do not see why the solicitor should be presumed to have intended the wavier to continue to have effect if the security he thought he was taking turns out not to have been valid and binding. In other words if the client is able to, and does. have the security avoided. t/ien the parties are in my judgment entitled to be put back into the same position as that in which they would have been had it never been granted... ' [Emphasis added]
"1 have always understood the law to be, that a solicitor had an inherent equity to have his costs paid out of any fund recovered by his exertions; and that the court would not part with it until these costs had been paid, except by the consent of the solicitor...._My opinion is that where a man knows that there is a fund in court, he knows also that it is subject to a solicitors ' lien for his costs of recovering it and that he is entitled to be paid in the first instance...". (2) In Guy v Churchill [1887] 35 D CH 489, Cotton LJ stated "
"Any monies recovered by PHRL from the date of this agreement (whether costs or otherwise) will be applied by CANDEY towards the Outstanding Costs and/or the Fixed Fee and/or disbursements al CANDEY's discretion. "
"In response to Mr Crumpler 's position that Candey waived its rights to its solicitor's lien by entering into a legal charge, I explained to PHRL 's director that Candey would be paid first from the fruits of litigation and I believed that she understood this."
"Here undoubtedly the property was preserved by the action brought by these solicitors on behalf of the Plaintiff and but [or the proceedings taken by them the mortgagee would have lost her security... " (Emphasis added)
"it was agreed between the Company and Tarek that, subject to certain conditions, they would cooperate to achieve the release of a sum of USD3 million held by Standard Chartered Bank ("