Glaser and Miller v Atay [2023] EWHC 2539 (KB)
In the High Court Appeal of Glaser and Miller v Atay, before Turner J, Jacqueline Perry KC and Alexander Bunzl successfully represented the Defendant, Ms. Atay. The Claimants, Leading Counsel, Michael Glaser KC and his Junior, Victoria Miller, had been instructed by the Defendant to represent her in financial remedy proceedings following her divorce. The trial date in the financial remedy proceedings was adjourned by court order several weeks before it was due to be heard on an application by the Defendant’s former husband whereupon the Defendant terminated her instructions of the Claimants.
In a case that could well have significant ramifications for the public access scheme created by the Bar Standards Board, the Claimants sued the Defendant for their unpaid fees basing their claims on the terms of their respective direct access contracts between themselves and the Defendant.
The Claimants argued at trial that they were entitled to the substantial outstanding fees set forth in their direct access contracts, alternatively an entitlement to fees on the basis of quantum meruit. They had been paid fully for all work actually done by them up to the date of the termination of their services, but each contended that they should be paid for the entire amount outstanding within the contract which meant fees for work not yet done and in respect of an adjourned trial for which, on their own evidence, no preparation had been done. The argument, essentially, was put on the basis that their respective diaries had been blocked out for the trial.
At first instance it was found that the payment term of the contract was unenforceable but there remained a legal obligation to pay a reasonable sum on a quantum meruit basis. It was held that this “reasonable fee” should amount to 70 per cent of the contractually agreed fee. In doing so, the Court found the Claimants had lost the opportunity of securing a substantial payment from the Defendant in respect of the adjourned trial.
There was considerable significance in the finding that the payment term was unenforceable and contrary to the provisions of the Consumer Protection Act 2015 since the terms as set forth in the contracts put before Ms. Atay were taken from the templates provided by the Bar Standards Board in its guidance materials.
Turner J held that the term did indeed run contrary to the standards of fairness and ‘equality of arms’ and further that, quantum meruit could not be applied to these facts. The Judge in the court below had erred in finding that quantum meruit could be awarded at all and he was doubtful at the level of reasonable fees that had been awarded. Turner J found no breach of contract in the Defendant’s termination of the Claimants’ services as she was under no obligation to instruct the Claimants beyond the period covered by the client care letter.
Turner J, further emphasised the legal position that the restitution remedy of quantum meruit requires the same to be assessed by the benefit to the recipient, not the cost to the service provider. The lower Court had made no finding of the value of any benefit accrued to the Defendant by the Claimants’ simply having blocked out their respective diaries. Further, Turner J observed that if a quantum meruit approach were permissible in such a case as this, it could incentivise traders to incorporate unfair terms in the hope that they would not be challenged but could provide a safety net for providing the payment of a reasonable fee even if the terms were unfair.
The Defendant’s appeal was allowed and the Claimants’ respective claims for their fees that were the subject of this Appeal and interest thereon, were dismissed.
You can read the full judgment here.
Law Society Gazette Article here.
