Glaser and another v Atay (CA-2023-002356)
This was heard by the Court of Appeal and on the 2.7.24 and judgment has been reserved.
The matter relates to a financial remedy claim against by the Defendant against her husband. The Claimants were barristers engaged on a public access basis to represent her at a Pre-Trial Review and subsequently a ten-day final hearing. Under the agreement almost all payments bar £3,700.00 were due by the 31 August 2020 for a final hearing on September 21. In August her ex-husband successfully applied to adjourn the final hearing. Thereafter she said no longer needed the services of the Claimants. She had made two payments and did not make any further. The Claimants sought their unpaid fees to the tune of £150k circa.
Counsel for the Claimants’ argued that the Defendant should be required to pay the fees as she received at least some of the services she had agreed to pay for. He argued that “From the ‘services provided’ point of view, the diary is blocked out. That is the end of it.” Finally, he also submitted that the Defendant had received a draft of the contract and did not object to the term before signing it.
Winchester County Court ruled in December 2022 that the Claimants should receive 70% of their fees for the work they had already supplied and that the 2015 Consumer Rights Act meant that the lawyers could not rely on the terms.
However in the High Court, HHJ Turner overturned the decision on appeal in October 2023, ruling that they had no contractual right to the payment, as their obligations under the agreement included attending the trial, which could no longer happen after the adjournment.
The Claimant’s escalated the matter to the Court of Appeal where it was submitted by the Defendant that the contract was unfair partly due to the imbalance of power between the barristers and her client and that under the contract, her client would be unfairly forced to pay for services that she had not received. The Defendant submitted “Why should I pay you to sit and twiddle your thumbs if the court has adjourned the case”?
The final judgement is awaited.
Commentary – A judgment certainly to keep an eye out for. Also worth considering the case of Hankin v Barrington & Ors [2021] EWHC B1. This appears to indicate that typically, a 50% abated fee can be recovered when a case settles nearly three weeks before trial (and no preparation has been undertaken). The judgment is eagerly awaited but in the meantime suspect challenges to abated counsel’s fees.