Where a client owes money on one matter and asks for the file along with files of other matters do I have a lien on these files?
If a client owes you costs on any one matter you will have a general possessory lien over all files of all matters for that client until all your costs have been paid. More precisely, your lien is over all deeds, papers or other personal property which belong to your client and which come into your possession with your client’s consent in the course of your employment and in your capacity as solicitor.
The lien also attaches to trust money held by you in your trust account beneficially for your client, rather than for a particular purpose or for the benefit of a third party, but the lien only attaches to the amount of your costs and not to the whole of the trust funds. (Lewis & Kyrou’s Handy Hints on Legal Practice 3rd edition 2004 pp.109-110).
Make sure that you only assert a lien over the files of the client that owes you the costs. So don’t, for instance, where a client owes you fees in their personal capacity, assert a lien over the client’s company’s files or over files where you acted for the client and someone else jointly. Check who owes you fees and whose files are in issue, and that the two coincide.
Remember that there are certain documents on your file that belong to you and it is not correct to think in terms of your having a lien on these. You have a right to retain them because they are yours, and your client is not entitled to them.
There are certain qualifications to your entitlement to a lien and it is subject to the intervention of the courts, as to which see the other FAQs in this category and He who terminates is lost by Gary Coveney and Lex Macgillivray, Proctor August 2008 pp.51-52.
More generally in relation to possessory liens see G. E. Dal Pont Law of Costs (2nd edition, 2009) Chapter 26: The Retaining Lien (available from Supreme Court Library - Document Delivery request).