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The rule against barristers suing for their fees

By: Mark Tottenham BL

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In his 18th century Commentaries on the Laws of England (Book 3, Chap 3), William Blackstone wrote comparing ancient Roman orators with modern counsel:

Those indeed practised gratis, for honour merely or at most for the sake of gaining influence: and so likewise it is established with us that a counsel can maintain no action for his fees; which are given ... not as a salary or hire, but as a mere gratuity which a counsellor cannot demand without doing wrong to his reputation.”

In the 1863 case of Kennedy v. Broun, a young barrister named Charles Kennedy was promised a fee of £20,000 by a widow, Patience Swynfen, if he was successful in a case concerning her father-in-law’s estate. He gave up the balance of his practice to pursue the case, and won. His client, with whom he had been in a relationship, then married Charles Broun and refused to pay the fee. Kennedy sued for his fee and won at trial, but the Court of Common Bench set aside the judgment, on the grounds that there could be no contract between a client and counsel, commenting:

If the law allowed the advocate to maintain a contract of hiring and service, it may be that his mind would be lowered, and that his performance would be guided by the words of his contract rather than by principles of duty.”

In the Irish case of Robertson v. Macdonagh (1880) 6 L.R. Ir. 433, a client had offered his barrister a special fee of 50 guineas for the first day of a criminal  trial, and 25 guineas per day thereafter, as well as special fees for consultations. The barrister was paid the initial fee, but failed to appear on the second day or any other day of the trial. The client was convicted, and sued the barrister for breach of contract. Relying primarily on Kennedy v. Broun, the court affirmed the rule excluding any contract:

The rule we consider an absolute rule and that it is wholly immaterial whether the fee or honorarium was named by the counsel or the client or whether the duties were to be performed in an ordinary or an exceptional Court. No contract in point of law can exist between the parties ...”

This rule appears to have survived Irish independence and the 1937 constitution, as well as the finding of an unenumerated ‘right to earn a living’ (Murtagh Properties v. Cleary [1972] IR 330), although it seems that the point has never been expressly argued.

In Ó Coindealbháin v Gannon [1986] IR 154, a case where a judge had asked that the fees he had earned as a barrister be paid into a private company, the question was whether he had ‘received’ the fees within the meaning of tax legislation. Costello J commented:

Another legal issue of importance to the respondent's case is that a barrister has no legal right to be paid his professional fees by his client. He may not accordingly sue the client for his fees. It is not necessary here to go into the reasons for this. The law is well established by the courts in both Ireland and the United Kingdom.”

In the UK, the situation was changed by section 61(1) of the Courts and Legal Services Act 1990: “Any rule of law which prevents a barrister from entering into a contract for the provision of his services as a barrister is hereby abolished.”

In a more recent development, in Singh v Sinel [2014] EWHC 3058, the English High Court held that, in the absence of an express contract, a counsel could sue in quantum meruit. In Gwinnutt v George [2019] EWCA Civ 656, it was held that unpaid barrister's fees, even when non-contractual, were "property" of the barrister and so vested in a trustee in bankruptcy.

In Ireland, Part 10 of the Legal Services Regulation Act 2015 makes extensive provisions concerning the assessment of legal fees, and expressly provides at section 151 that a legal practitioner and client may make an “agreement in writing” concerning fees. Whether this could give rise to an enforceable contract between a barrister and a client is yet to be seen. Otherwise, the situation may still resemble that described by Blackstone as it pertained to Roman orators.

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