Michael Glaser KC v Katharine Jane Atay
| Jurisdiction | England & Wales |
| Judge | Mr Justice Turner |
| Judgment Date | 12 October 2023 |
| Neutral Citation | [2023] EWHC 2539 (KB) |
| Court | King's Bench Division |
| Docket Number | APPEAL REF: KA-2022-BRS-000018 |
[2023] EWHC 2539 (KB)
The Hon. Mr Justice Turner
APPEAL REF: KA-2022-BRS-000018
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
BRISTOL APPEAL CENTRE
ON APPEAL FROM WINCHESTER COUNTY COURT
His Honour Judge Berkley
(Claim No: G74YJ072)
BETWEEN:
Royal Courts of Justice
Strand, London, WC2A 2LL
Paul Mitchell KC (instructed by Michael Glaser KC and Victoria Miller) for the Claimants/Respondents
Jacqueline Perry KC and Alexander Bunzl (instructed by Direct Access) for the Defendant/Appellant
Hearing date: 25 July 2023
Judgment Approved by the court for handing down
If this Judgment has been emailed to you it is to be treated as ‘read-only’. You should send any suggested amendments as a separate Word document.
INTRODUCTION
This case concerns two barristers, the claimants, suing a former client, the defendant, for payment of outstanding fees under the terms of a written agreement entered into under the Public Access Scheme. The matter now comes before this court in the form of an appeal and cross appeal against the decision of His Honour Judge Berkley of 6 December 2022. For reasons of convenience and consistency, I will continue to refer to the parties as claimants and defendant respectively.
The central issues are:
(i) the extent, if any, to which the provisions of the Consumer Rights Act 2015 (“the 2015 Act”) operate so as to preclude the claimants from relying upon one of the central terms of their agreement relating to payment; and
(ii) the consequences which are to follow in the event that the 2015 Act so operates.
The defendant contended below that the application of the 2015 Act meant that the claimants were entitled to nothing. The claimants argued that the 2015 Act did not apply and, even if it did, they were nevertheless entitled to payment in full.
In the event, the Judge held that the operation of the 2015 Act did indeed preclude the claimants from relying on the contractual term relating to payment but that the defendant should nevertheless pay 70% of what would otherwise be the contractual sum due by way of quantum meruit. The defendant seeks to challenge this decision on appeal and the claimants cross appeal. The primary stance of each therefore remains that this is an all or nothing case in their favour.
THE BACKGROUND
The defendant was pursuing a financial remedy in proceedings against her former husband, a wealthy businessman. It has been estimated that the value of the assets at stake was in the region of £20M.
She engaged the first and second claimants to act on her behalf in the litigation on a public access basis as leading and junior counsel respectively. For the sake of clarity, I will not elaborate upon the details of the procedural history of the case save to the extent that they are material to the issues which arise on this appeal. Nor shall I engage with some of the issues with which the Judge below had to grapple because permission to appeal on such issues was refused and my permission was not sought to revive them.
In March 2020, the trial was listed to be heard over a ten day period starting on 21 September 2020. The hearing, which had originally been given an optimistic time estimate of five days, had already been listed and adjourned once before.
By a letter dated 29 June 2020, the first claimant set out the terms under which he was prepared to accept the defendant's instructions. In so far as is material, it provided:
“I thought it would be helpful to set out the work that I will carry out for you and the fees that I will charge for this work.
The work I will carry out
The work you are instructing me to carry out is:
Preparation of and representation at the PTR hearing on the 10 July 2020, and the 10 [day] Final hearing commencing from the 21 September 2020, listed at the Central Family Court.
For the avoidance of doubt, the fee covers the above mentioned work and therefore if the hearing concludes early or is adjourned to another date or does not go ahead for any reason beyond our control, then the full fee is still payable and another fee will be payable for any adjourned hearing.
If subsequent work is needed on this matter, there will be another letter of agreement between us.
Because I carry out all my work personally and cannot predict what other professional responsibilities I may have in the future, I cannot at this stage confirm that I will be able to accept instructions for all subsequent work that may be required by your case.
My fees for this work
My fee for accepting the instruction to appear as an advocate on the occasions described above will be £90,000 plus VAT. You and I agree that I will not attend the hearing unless you have paid the fee in advance.
Total fees for my work as described above (exc. VAT): £90,000
VAT: £18,000
Total amount due: £108,000
The first payment of £12,550 is due by 6 July 2020
The second payment of £12,550 is due by the 10 July 2020
The third payment of £79,200 is due by the 31 August 2020
The final payment of £3,700 and any other fees due in respect of additional work is due 28 days after receiving the final order
Unless otherwise agreed failure to send payments on the aforementioned dates will mean that I will not be able to represent you at the hearings .
Any additional work will be billed at my hourly rate of £500 plus VAT.”
[Emphasis not added]
The second claimant's terms were identical save that the level of fees was one half that of the first claimant.
This was the basis upon which the defendant retained the claimants. The Judge below observed, in my view reasonably, that “given the significant sums involved one would have expected a more carefully thought through document”.
THE BAR STANDARDS BOARD TEMPLATE
The Judge went on, at paragraph 14 of his judgment, to note that the terms were “based on the Bar Standard Board's Templates”.
In their written submissions below the claimants had asserted:
“13. The First Claimant's clerks sent the Defendant a contract (i.e., the First Contract) which follows the Bar Standards Board's:
“Model Client Care Letter (NoIntermediary)”
(https://www.barstandardsboard.org.uk/resources/resource-library/public-access-model-client-care-letter-no-intermediary doc.html).
As permitted by the BSB Handbook, and following the model wording proposed by the BSB, the First Claimant and the Defendant agreed a fixed fee for the work the Defendant wished the First Claimant to undertake at the time it required to be undertaken. The practice of “rolling up” the refreshers into a fixed fee arises from the fact that, pursuant to the BSB Handbook, barristers are not permitted to hold client money. When they work for solicitors, of course the solicitor can hold the money required on account and release it as and when necessary; but that option is not open to barristers working on direct access. In order to have certainty regarding payment therefore, a fixed fee is sought which covers the work required to prepare the brief as well as the refreshers.”
Indeed, when giving permission to appeal, the Single Judge expressed understandable concern about the potential impact which the determination of the issues between the parties to this appeal might have upon the enforceability of any contract based upon the BSB model.
However, it is to be noted that the BSB templates, in fact, include the following:
“Option 2: My fee for accepting the instruction to appear as an advocate on the occasion described above will be £XX plus VAT. You and I agree that I will not attend the hearing unless you have paid the fee in advance. If for any reason the case takes longer than one day, I will charge an extra fee of £XX per day plus VAT.”
I observe:
(i) It as assumed that the services in question are likely to be limited to an attendance of one day only;
(ii) Refreshers are only to be paid in the event of the case lasting longer than one day and not in advance. N.B. The payment of refreshers does not have to be rolled up into a lump sum payable in advance in order to comply with the rule that a barrister is not permitted to hold client monies (see further the Bar Standards Board Guidance gC107 on this topic set out below).
(iii) The consequence of non-payment of the fee is that the advocate will be released from the obligation of attending the hearing; there is no express provision for payment or retention of fees in the event that the hearing does not go ahead.
Counsel for the claimants rightly conceded before the Judge that, in the claimants' terms, the obligation to pay non-recoverable fees in advance was “in addition” to those contemplated in the BSB standard letter. Of course, this point is not determinative of the issues before me but it is important to bear in mind that that my findings are therefore not to be taken either as an endorsement or condemnation of the BSB terms.
THE DISPUTE ARISES
In the event, at a hearing of 26 August 2020, Mr Atay applied to adjourn the trial. He was successful. Shortly after, on 31 August, the day upon which the bulk of counsels' fees became due under the terms of the letter, the defendant sent an email to the claimants' clerk indicating that she no longer wished to instruct them. She had made the first and second payments but refused to pay any more.
The claimants duly commenced proceedings against the defendant seeking recovery of the balance of their fees under the contracts described above at paragraph 10, as well as payment of other fees which remained unpaid under further contracts concluded between themselves and the defendant on 25 August 2020.
The defence raised issues of professional negligence which were promptly struck out and thus require no further...
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