Two barristers, one of them a silk, have lost what was described as an ‘all or nothing’ court case in which they sued a former client for £150,000 in fees.
Michael Glaser KC and Victoria Miller, of London family law set Fourteen, took action against Katharine Jane Atay for payment of outstanding fees under the terms of a written agreement entered into under the Public Access Scheme.
Atay had been in dispute with her former husband, a wealthy businessman, over assets with an estimated value of £20m. She engaged Glaser and Miller on a public access basis, as leading and junior counsel respectively, for a ten-day trial listed at the Central Family Court in September 2020.
Glaser and Miller said in letters of agreement they would do the work and a pre-trial review hearing for £90,000 and £45,000 respectively plus VAT, the High Court heard.
Their agreements included a requirement for Atay to pay non-recoverable fees in advance. Atay had made two advance payments – totalling £25,100 to Glaser and half as much to Miller – but in August 2020 her husband successfully applied to adjourn the trial.
On the day the bulk of the fees became payable under the terms of the letter, Atay emailed the barristers’ clerk indicating she no longer wished to instruct them and refused to pay any more. Atay argued that the application of the Consumer Rights Act 2015 meant the claimants were not entitled to their fees. She said a term of the agreement was unfair because, in the event of the trial not going ahead, it had the potential to entitle the claimants to claim a lot of money for doing little or nothing.
His Honour Judge Berkley, sitting in Winchester County Court, held the 2015 act did preclude the barristers from relying on the contractual terms but said Atay should nevertheless pay 70 per cent on a quantum meruit basis.
But Mr Justice Turner allowed an appeal by Atay and overturned the quantum meruit award, which he said was not allowed under the CRA.
‘By the operation of the statutory regime, an unfair term must be deemed never to have existed’, the judge said. ‘Where a term is unfair, the whole of that term must be removed and not just the unfair aspects of that term. If a quantum meruit approach were permissible in this case, it would have the potential to disincentivise traders from ensuring that the terms under which they contracted were fair. Otherwise they could opt to incorporate unfair terms in the hope that they would not be challenged but confident that there would be a safety net providing for the payment of a reasonable sum in the event that they were.’
