The recent case of Williamson & Williamson v Pay  QSC 324 called into question whether, in a costs dispute between a solicitor and a barrister, a court can grant a barrister’s lien. This would allow a barrister to hold the property of a retaining solicitor pending payment of barrister’s fees. While the Supreme Court did not reject the possibility of a barrister’s lien, Justice Williams held that in principal a barrister’s lien does not differ from an equitable lien and granting of a barrister’s lien will wholly depend on the circumstances.
Barrister David Laws launched proceedings against principal solicitor Ian Thompson for large amounts owing in fees. Before the Supreme Court, Counsel for Laws questioned whether a solicitor’s lien should be extended to barristers. A solicitor’s lien allows a solicitor to keep the property of a client, for example a deed or documents, until all fees are made. Mr Laws contested that, as a solicitor’s lien is not limited to relationships between a solicitor and their client, it should be applicable to a barrister and solicitor relationship.
The extension of a solicitor’s lien to a barrister has particular bearing in the modern legal world given the ability of clients to directly brief barristers. The ability for barristers to accept briefs from clients directly is a relatively recent phenomenon in Australia. Counsel for Laws submitted that a barrister’s lien is not excluded in principal from being recognised as an equitable lien. An equitable lien does not require the existence of a contractual relationship and is not limited by particular class or circumstances.
While the Supreme Court held that there is some authority in support for granting a barrister’s lien, Mr Law’s case did not fall into those circumstances. Justice Williams held that authorities appear to support a situation where a barrister receives a direct brief or where a solicitor is not directly liable for counsel’s fees.
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