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
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