The Court of Appeal has upheld a ruling against two public access barristers seeking nearly £125,000 in fees, citing unfair contract terms.
- A contentious ‘payment term’ in the barristers’ contract required full fees even if no services were rendered due to adjournments.
- Lower courts previously judged the payment term as creating a significant imbalance, violating consumer rights.
- The appeal court affirmed the unfairness, stressing risks should not wholly favour legal counsel over clients.
- The barristers’ attempt to recover fees after an adjourned trial faced judicial resistance due to contract inadequacies.
The Court of Appeal has supported a decision by lower courts rejecting the fee claim by two public access barristers worth nearly £125,000. The barristers sought these fees despite a significant term in their retainers being deemed unfair.
Lord Justice Nugee, delivering the unanimous ruling, highlighted that the payment term required clients to pay the full fee even if their hearing was adjourned for reasons beyond their control. The court viewed this as causing a severe imbalance in the contractual relationship to the consumer’s detriment.
The initial and appellate courts agreed on the unfairness of this term under the Consumer Rights Act 2015. The term allowed barristers to receive full payment without delivering any valuable service if hearings were adjourned or ineffective for reasons not attributable to the client.
Counsel involved, Mr Michael Glaser KC, and Ms Victoria Miller were hired during a financial remedy proceeding. Their fees were structured in instalments, ensuring almost complete payment before any substantial hearing. This became contentious when the trial was adjourned, yet fees were payable in full.
Judge Berkley originally found the payment term violated the Consumer Rights Act. However, he ruled Ms Atay should pay 70% of the fees as quantum meruit—a decision later overturned on appeal by Justice Turner, who emphasised the need for fair contract terms to incentivise traders to maintain fairness.
Nugee LJ pointed out the imbalance of risks, where barristers retained full fees despite possible cancellations or adjournments. This arrangement favoured their ability to profit from other work obtained during the time reserved for the initial hearing.
The Court concluded that the good faith necessary in contractual arrangements was not upheld simply by consumer negotiation, especially where significant pressure and dependency existed on the client’s part without alternative advice or sufficient information.
Ultimately, the case underscores the importance of balanced contractual terms to prevent unfair advantages and preserve consumer rights.
