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09 February 2018 / Gerard Clarke
Issue: 7780 / Categories: Features , Commercial
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No lien, no rights?

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Gerard Clarke surveys the recent Harlequin Caribbean timeshare case, which confirms the importance of contracting for protection

  • Insurers and funders should take care to protect their premiums and fees by contract.
  • Absent contractual priority, insurers (and funders) will not have liens on litigation proceeds.
  • The ex parte James principle of insolvency law does not apply to officers of overseas courts.

All solicitors know (or should know) that they can assert a lien over money recovered by them for clients through litigation. Even apart from the modern statutory protection afforded by s 73 of the Solicitors Act 1974, which provides for a statutory charge in favour of a solicitor to protect fees and disbursements, the law has for centuries regarded it as unconscionable that the solicitor who brings about a financial recovery for a client should not be paid before the client is paid.

Liens for others?

Should the same principle apply to a barrister? What about a litigation funder or an after the event (ATE) insurer? The answer so far as a barrister is

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