BC Court of Appeal Confirms Solicitor's Liens Can Apply Retroactively

Reasons for judgement were released this week by the BC Court of Appeal discussing the effects of a Solicitor’s Lien under the Legal Profession Act in the context of a personal injury claim prosecuted on a contingency basis.
In this week’s case (FitzGibbon v. Piters) the Plaintiff was injured in a collision.  She hired a lawyer to advance her claim for damages.  In the course of the claim a breakdown occurred in the relationship and the Plaintiff retained new counsel.  The claim eventually settled and the first firm sought payment from the settlement amount by way of solicitor’s lien.  No notice of this lien was given, apparently, until after settlement and disbursement of funds.  A dispute arose whether a solicitor’s lien could be attached retroactively to the settlement.  The Court of Appeal agreed that it could and that a valid lien existed in these circumstances.  In doing so BC’s high court provided the following reasons:

30] The nature of the charge arising may be described an “inchoate right”, the crystallization of which requires only the pronouncement of the court [see Re Tots and Teens Sault Ste. Marie Ltd., et al (1975), 65 D.L.R. (3d) 53 (Ont. H.C.J.)].  While the charge exists, by statute, upon the recovery of property as a result of the retained lawyer’s efforts, the charge only becomes enforceable upon declaration by the Court under s. 79(3).

[31] This analysis is consistent with the decision of the Supreme Court of British Columbia in Jenik v. Fearn, (1995) 130 D.L.R. (4th) 695 (B.C.S.C.), and in Chouinard.

[32] The decision of whether to make a declaration upon application is a discretionary one.  The judge must be satisfied that it would be “just and proper” to grant the order (see Wilson, King & Co. v. Lyall (Trustees of) (1987), 12 B.C.L.R. (2d) 353 (C.A.), and Cliffs Over Maple Bay Investments Ltd. (Re), 2011 BCCA 346, 21 B.C.L.R. (5th) 297).

[33] It is not an answer to the inchoate nature of the charge to say that the property it applies to has not been identified.  In Doyle v. Keats, (1990) 46 B.C.L.R. (2d) 54 (S.C.), the Court said:

It is my opinion that the words “any property” used in s. 79 of the Legal Profession Act are as well of the widest possible character, and include a chose in action. Further, I am of the view that the specific property need not be immediately ascertained. It is generally, but not exclusively, the client’s interest in the property which is subject to the charge: Walker v. Saunders, supra. The ascertaining of the extent of that interest may occur subsequent in time to the creation of the charge.

[34] In my respectful opinion, the argument that a charging order under s. 79 cannot have retrospective effect is not supported either by the language of the statute or by the relevant caselaw.

FitzGibbon v. Piters, section 79 Legal Profession Act, Solicitor's Lien

Comments (104)

  • Youre so cool! I dont suppose Ive learn anything like this before. So good to search out any person with some authentic thoughts on this subject. realy thanks for starting this up. this web site is one thing that is wanted on the web, somebody with just a little originality. helpful job for bringing something new to the internet!

  • I am no longer sure the place you are getting your information, but great topic. I needs to spend some time learning more or working out more. Thank you for magnificent information I used to be looking for this information for my mission.

  • With havin so much written content do you ever run into any problems of plagorism or copyright infringement? My site has a lot of unique content I’ve either written myself or outsourced but it seems a lot of it is popping it up all over the web without my authorization. Do you know any techniques to help reduce content from being stolen? I’d genuinely appreciate it.

  • I haven¡¦t checked in here for some time as I thought it was getting boring, but the last few posts are great quality so I guess I¡¦ll add you back to my daily bloglist. You deserve it my friend 🙂

  • Thanks for making me to get new thoughts about computer systems. I also have belief that one of the best ways to help keep your notebook computer in prime condition is to use a hard plastic case, or maybe shell, that suits over the top of your computer. A lot of these protective gear are model targeted since they are manufactured to fit perfectly above the natural covering. You can buy these directly from the vendor, or via third party places if they are designed for your notebook, however don’t assume all laptop could have a shell on the market. Again, thanks for your suggestions.

  • I’ve been browsing on-line greater than 3 hours lately, yet I never discovered any interesting article like yours. It is lovely value enough for me. In my opinion, if all site owners and bloggers made just right content as you did, the internet will probably be a lot more helpful than ever before.

  • Hi there! Someone in my Myspace group shared this website with us so I came to check it out. I’m definitely enjoying the information. I’m book-marking and will be tweeting this to my followers! Fantastic blog and great design.

  • Thanks for expressing your ideas listed here. The other matter is that whenever a problem develops with a pc motherboard, individuals should not take the risk associated with repairing the item themselves because if it is not done right it can lead to permanent damage to all the laptop. It is almost always safe just to approach the dealer of a laptop with the repair of the motherboard. They’ve already technicians who have an expertise in dealing with notebook computer motherboard troubles and can carry out the right prognosis and carry out repairs.

  • What i don’t understood is in truth how you are no longer actually a lot more smartly-favored than you might be right now. You are so intelligent. You recognize therefore considerably in the case of this topic, made me individually imagine it from so many varied angles. Its like men and women are not interested unless it¡¦s one thing to do with Lady gaga! Your individual stuffs nice. All the time care for it up!

  • Thank you so much for giving everyone an exceptionally nice chance to discover important secrets from this website. It can be so great and as well , packed with a lot of fun for me personally and my office acquaintances to visit the blog really three times a week to learn the newest items you have got. And definitely, we’re actually happy with your great tips served by you. Some two ideas in this posting are essentially the very best we have all had.

  • Hi there! I just wanted to ask if you ever have any issues with hackers? My last blog (wordpress) was hacked and I ended up losing many months of hard work due to no back up. Do you have any solutions to stop hackers?

  • Heya i am for the first time here. I came across this board and I find It really useful & it helped me out a lot. I hope to give something back and aid others like you aided me.

  • What i do not understood is if truth be told how you are no longer actually a lot more smartly-favored than you may be right now. You’re so intelligent. You know therefore significantly in the case of this topic, produced me individually imagine it from so many various angles. Its like women and men are not fascinated until it’s something to do with Lady gaga! Your own stuffs outstanding. All the time deal with it up!

  • Its like you learn my mind! You appear to understand a lot approximately this, such as you wrote the book in it or something. I believe that you can do with a few percent to pressure the message home a bit, however other than that, that is magnificent blog. An excellent read. I’ll certainly be back.

  • Generally I don’t read post on blogs, but I would like to say that this write-up very forced me to try and do it! Your writing style has been amazed me. Thanks, very nice article.

  • I am typically to blogging and i really respect your content. The article has really peaks my interest. I am going to bookmark your web site and preserve checking for new information.

  • Can I just say what a reduction to seek out somebody who really knows what theyre talking about on the internet. You positively know methods to carry a problem to light and make it important. Extra folks need to read this and understand this aspect of the story. I cant consider youre not more well-liked because you undoubtedly have the gift.

  • hello!,I love your writing very a lot! proportion we keep in touch extra approximately your post on AOL? I require a specialist on this house to unravel my problem. Maybe that’s you! Taking a look forward to look you.

  • I’ve been exploring for a little bit for any high quality articles or blog posts in this sort of space . Exploring in Yahoo I ultimately stumbled upon this site. Reading this info So i’m glad to express that I’ve a very excellent uncanny feeling I came upon exactly what I needed. I most no doubt will make certain to do not put out of your mind this website and provides it a look regularly.

  • I’m still learning from you, as I’m trying to achieve my goals. I certainly liked reading all that is written on your site.Keep the posts coming. I loved it!

  • Hey just wanted to give you a quick heads up. The words in your post seem to be running off the screen in Firefox. I’m not sure if this is a formatting issue or something to do with internet browser compatibility but I thought I’d post to let you know. The layout look great though! Hope you get the issue solved soon. Many thanks

  • Hey there! I just wanted to ask if you ever have any problems with hackers? My last blog (wordpress) was hacked and I ended up losing many months of hard work due to no back up. Do you have any solutions to stop hackers?

  • There are definitely a lot of particulars like that to take into consideration. That could be a nice level to convey up. I offer the thoughts above as common inspiration but clearly there are questions like the one you deliver up where a very powerful factor will be working in honest good faith. I don?t know if best practices have emerged around issues like that, but I am sure that your job is clearly identified as a fair game. Each boys and girls really feel the impression of only a second’s pleasure, for the remainder of their lives.

  • An impressive share, I simply given this onto a colleague who was doing a little analysis on this. And he in reality purchased me breakfast as a result of I found it for him.. smile. So let me reword that: Thnx for the treat! But yeah Thnkx for spending the time to discuss this, I feel strongly about it and love reading more on this topic. If possible, as you change into expertise, would you mind updating your blog with more particulars? It’s highly helpful for me. Large thumb up for this blog post!

  • certainly like your web-site however you have to check the spelling on several of your posts. Many of them are rife with spelling issues and I in finding it very troublesome to tell the truth nevertheless I’ll definitely come again again.

  • We absolutely love your blog and find almost all of your post’s to be what precisely I’m looking for. can you offer guest writers to write content available for you? I wouldn’t mind publishing a post or elaborating on many of the subjects you write regarding here. Again, awesome blog!

  • Youre so cool! I dont suppose Ive learn something like this before. So good to find any person with some original ideas on this subject. realy thank you for beginning this up. this website is one thing that is wanted on the net, somebody with just a little originality. helpful job for bringing something new to the web!

  • I would like to thank you for the efforts you have put in writing this website. I am hoping the same high-grade blog post from you in the upcoming as well. Actually your creative writing abilities has encouraged me to get my own web site now. Actually the blogging is spreading its wings fast. Your write up is a great example of it.

  • Hello there, just became alert to your blog through Google, and found that it’s truly informative. I’m going to watch out for brussels. I’ll be grateful if you continue this in future. Many people will be benefited from your writing. Cheers!

  • Have you ever thought about publishing an e-book or guest authoring on other websites? I have a blog based upon on the same topics you discuss and would really like to have you share some stories/information. I know my visitors would appreciate your work. If you are even remotely interested, feel free to send me an e mail.

  • I will immediately grasp your rss as I can’t to find your email subscription hyperlink or newsletter service. Do you’ve any? Kindly permit me know so that I may just subscribe. Thanks.

  • Hello just wanted to give you a quick heads up. The text in your article seem to be running off the screen in Chrome. I’m not sure if this is a formatting issue or something to do with internet browser compatibility but I figured I’d post to let you know. The style and design look great though! Hope you get the issue fixed soon. Thanks

  • Hi there, just changed into alert to your blog via Google, and found that it is really informative. I’m going to be careful for brussels. I will appreciate if you proceed this in future. Many other folks will likely be benefited from your writing. Cheers!

  • One thing is that if you find yourself searching for a education loan you may find that you will want a co-signer. There are many circumstances where this is true because you will find that you do not use a past history of credit so the lender will require that you have someone cosign the credit for you. Thanks for your post.

  • A person necessarily assist to make critically articles I would state. This is the very first time I frequented your web page and thus far? I surprised with the analysis you made to create this particular publish extraordinary. Fantastic job!

  • Thanks for sharing your ideas right here. The other matter is that any time a problem appears with a laptop motherboard, persons should not consider the risk with repairing that themselves for if it is not done right it can lead to permanent damage to an entire laptop. In most cases, it is safe just to approach any dealer of any laptop for the repair of its motherboard. They have technicians that have an knowledge in dealing with laptop motherboard challenges and can make right prognosis and accomplish repairs.

  • Hello my loved one! I wish to say that this article is awesome, great written and include approximately all vital infos. I’d like to see extra posts like this.

  • Hi there, I found your site by way of Google whilst looking for a similar matter, your site came up, it seems to be great. I have bookmarked it in my google bookmarks.

  • I just like the helpful information you supply in your articles. I will bookmark your blog and test again right here regularly. I am moderately sure I’ll be informed many new stuff proper here! Good luck for the next!

  • That is the correct weblog for anybody who needs to search out out about this topic. You realize so much its almost arduous to argue with you (not that I really would need…HaHa). You undoubtedly put a brand new spin on a topic thats been written about for years. Great stuff, just great!

  • hello!,I really like your writing very much! proportion we keep in touch extra approximately your article on AOL? I need an expert in this space to resolve my problem. May be that’s you! Having a look ahead to peer you.

  • Hey, you used to write fantastic, but the last several posts have been kinda boring… I miss your great writings. Past few posts are just a little out of track! come on!

  • Greetings! I know this is kinda off topic but I’d figured I’d ask. Would you be interested in exchanging links or maybe guest authoring a blog post or vice-versa? My blog covers a lot of the same topics as yours and I think we could greatly benefit from each other. If you happen to be interested feel free to send me an e-mail. I look forward to hearing from you! Superb blog by the way!

  • Do you have a spam problem on this website; I also am a blogger, and I was curious about your situation; many of us have developed some nice methods and we are looking to exchange methods with others, why not shoot me an e-mail if interested.

  • I am commenting to let you know of the brilliant experience my wife’s princess gained studying your web site. She came to find lots of issues, not to mention what it is like to possess a marvelous coaching heart to get men and women with no trouble thoroughly grasp certain problematic matters. You truly did more than our own expected results. I appreciate you for displaying such invaluable, dependable, informative not to mention unique tips about this topic to Sandra.

  • You actually make it seem so easy with your presentation but I find this topic to be actually something which I think I would never understand. It seems too complicated and extremely broad for me. I am looking forward for your next post, I’ll try to get the hang of it!

  • I haven’t checked in here for some time as I thought it was getting boring, but the last few posts are great quality so I guess I’ll add you back to my everyday bloglist. You deserve it my friend 🙂

  • Thanks for your useful article. One other problem is that mesothelioma is generally a result of the breathing of fibers from mesothelioma, which is a positivelly dangerous material. Its commonly noticed among laborers in the engineering industry who may have long experience of asbestos. It can also be caused by moving into asbestos covered buildings for an extended time of time, Inherited genes plays a huge role, and some individuals are more vulnerable for the risk compared to others.

  • A powerful share, I just given this onto a colleague who was doing a bit of evaluation on this. And he in actual fact purchased me breakfast as a result of I discovered it for him.. smile. So let me reword that: Thnx for the deal with! But yeah Thnkx for spending the time to discuss this, I really feel strongly about it and love studying more on this topic. If doable, as you become expertise, would you mind updating your blog with more particulars? It’s extremely useful for me. Large thumb up for this blog post!

  • hi!,I like your writing very much! share we communicate more about your post on AOL? I need a specialist on this area to solve my problem. May be that’s you! Looking forward to see you.

  • Good day! Do you know if they make any plugins to protect against hackers? I’m kinda paranoid about losing everything I’ve worked hard on. Any suggestions?

  • Hey very cool site!! Guy .. Beautiful .. Amazing .. I will bookmark your blog and take the feeds additionally…I am satisfied to search out numerous useful info right here within the put up, we want develop more strategies in this regard, thank you for sharing.

  • Thank you for sharing superb informations. Your web-site is very cool. I am impressed by the details that you have on this web site. It reveals how nicely you understand this subject. Bookmarked this web page, will come back for more articles. You, my pal, ROCK! I found simply the info I already searched everywhere and just could not come across. What a great web site.

  • I have to express my appreciation to the writer just for rescuing me from such a issue. Because of browsing through the online world and obtaining tricks which were not powerful, I was thinking my life was well over. Living devoid of the approaches to the problems you’ve sorted out through the website is a crucial case, and the ones which could have in a negative way affected my entire career if I hadn’t noticed the website. Your good know-how and kindness in handling a lot of stuff was precious. I don’t know what I would have done if I had not come across such a stuff like this. It’s possible to at this moment look forward to my future. Thanks very much for this skilled and results-oriented guide. I will not think twice to recommend your site to any person who should get guidance on this problem.

  • Attractive section of content. I just stumbled upon your website and in accession capital to assert that I get actually enjoyed account your blog posts. Any way I will be subscribing to your feeds and even I achievement you access consistently fast.

  • I appreciate, cause I found exactly what I was looking for. You have ended my four day long hunt! God Bless you man. Have a great day. Bye

  • I know this if off topic but I’m looking into starting my own blog and was curious what all is required to get setup? I’m assuming having a blog like yours would cost a pretty penny? I’m not very web savvy so I’m not 100 certain. Any recommendations or advice would be greatly appreciated. Thanks

  • Wow, wonderful blog format! How lengthy have you ever been running a blog for? you make running a blog look easy. The full glance of your site is fantastic, as smartly as the content!

Comments are closed.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer