An eminent barrister diagnosed with dementia knew what he was doing when he agreed legal fees for signing a new will, the High Court has ruled.
Costs Judge Whalan concluded that the unnamed barrister, now 91, had capacity to enter into the contractual retainer with Kent firm Furley Page in October 2020. The firm delivered seven invoices in total coming to almost £73,000, but to date just £1,000 has been paid.
It was submitted in Furley Page LLP v KFL by representatives of the barrister that he lacked the capacity to enter into the contract of retainer and therefore had no liability for fees.
The barrister, a well-known and distinguished academic and practitioner, had previously granted lasting powers of attorney for property and affairs to two attorneys who were former colleagues and friends from his chambers.
In late 2020, these attorneys received notice that the welfare and property LPAs had been revoked and they were to be replaced by new attorneys, the barrister’s nephew and niece. These new attorneys had engaged Furley Page in October 2020 to enable the barrister to create a new will in which he made them significant bequests.
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In January 2021, Mr Justice Hayden order the Office of the Public Guardian to suspend its processing of the deed of revocation of the 2019 Lasting Power of Attorney and the registration of the new 2020 Lasting Power of Attorney. The Official Solicitor was invited to act as the barrister’s litigation friend.
Experts appointed to assess his condition agreed collectively that he had ‘significantly deteriorated’ by June 2021 and as a result lacked capacity. But they disagreed on whether the same applied to when the retainer was signed.
Representatives of the barrister told the court he had ‘little or nothing to do with the agreement and that his only involvement was to sign the document. A contemporary attendance note described his condition then as ‘very vulnerable’ and it was suggested that a section of the expert’s report in which the barrister said he was ‘no longer competent’ to make decisions should have rung alarm bells with the firm and prompted further investigation.
The firm submitted that the barrister had capacity to enter into a retainer and it had conducted a careful assessment of his status. The firm was aware that the barrister was not a typical lay client, but an experienced and eminent legal professional.
Whalan said the barrister had been capable of having a three-and-a-half-hour meeting in November 2020 where an attendance note showed he was alert and aware and did not want to become a burden to his old friends and colleagues.
‘The overall impression, therefore, was one of a gradual and relatively gentle process of deterioration of the [barrister’s] capacity, without there being a bright line that marked a moment precipitous decline, whereupon it could be said that he had lost capacity,’ said the judge.
‘Insofar as I have noted that the [barrister] had lost capacity by June 2021, it seems to me that this represented the first point in time when this conclusion could be justified and stated with any confidence.’
