My client has not paid their pre-certificate fees. Can I exercise a lien over the file?

I acted in a civil litigation matter for a client who agreed to pay privately. I carried out some work before a change in their financial status during proceedings made them eligible for legal aid and a certificate was issued. They have not paid their bill and want to instruct another firm. Can I exercise a lien over the file?

Where a client is legally aided, the solicitor's costs are secured by the legal aid certificate.

Exercising a lien over unpaid pre-certificate fees should only be done if it’s reasonable to do so.

As the proceedings are ongoing, you should consider releasing the papers to the successor firm subject to obtaining a satisfactory undertaking.

In practice, this undertaking may not be forthcoming, as there’s no guarantee that the client will recover the costs from the opponent at the conclusion of the proceedings.

If you manage to obtain the relevant undertaking, it’s recommended that you do not forward the file until the legal aid certificate has been transferred into that new firm.

If you insist on exercising your lien over the file for unpaid pre-certificate costs, the client may apply to the court for a production order to deliver up your client’s file notwithstanding the existence of a valid lien (see section 68 of the Solicitors Act 1974).

To avoid a similar situation in the future, it’s advisable to request regular payments on account or state clearly at what stage payments will be due in the client care letter at the outset of the retainer.