Did the Consumer Rights Act apply to public access barristers’ fees?

D was pursuing a financial remedy claim against her husband. C1 and C2 were barristers engaged on a public access basis to represent her at a PTR and ten-day final hearing. Under the agreement almost all payments bar £3700 were due by 31 August 2020 for final hearing on September 21. In August H successfully applied to adjourn the final hearing. Thereafter W said she no longer needed the services of C1 and C2. She had made two payments and did not make any further. C1 and C2 sought their unpaid fees.

At first instance, HHJ Berkeley held that as the Consumer Rights Act 2015 (CRA 2015) did apply, the terms of the agreement requiring payment up front could not be relied upon. Applying the quantum meruit principle, 70% of the fees should be paid. Both parties appealed.

On appeal to Turner J:

The clause that required all fees to be paid prior to the trial fell foul of the CRA 2015. The term could not fall within the safe harbour defence under s 62 CRA 2015 because the term required the payee to pay the full/nearly the full price without any services rendered and regardless of any savings or gains made by the payer. This was distinguished from the level of the fee for services rendered, which would fall under the s 62 defence.

The ultimate test to decide whether the term was unfair was: Does it create significant imbalance, contrary to the requirements of good faith, to the detriment of consumers? This was decided in the affirmative. Even if no work was done the fee would be payable, all the risk in terms of adjournment fell on D and the risk of this occurring was far more familiar to a lawyer, the contract was not negotiated they were simply handed to D in a letter, and a lay person (especially in a family case) was reliant and potentially vulnerable.

However, quantum meruit could not be used to decide what sum was owed to C1 and C2. It would disincentivise traders from ensuring that the terms under which they contracted were fair if they could rely upon that safety net. Moreover, where a term is unfair, the whole of that term must be removed and not just the unfair aspects of that term.

Obiter: Quantum meruit is based, at least primarily, upon detriment to the party bringing a claim rather than benefit to the recipient. The barristers blocking their diaries was not of benefit to D.