An intellectual property barrister is not liable to her instructing solicitors for a loss of fees caused by her alleged negligence, the High Court has ruled.
Barrister Denise McFarland brought a claim against Birmingham firm England Kerr Hands over unpaid fees amounting to £34,100, from a total bill of £53,765. In a counterclaim, the solicitors' practice alleged it lost around £150,000 as a result of the barrister’s breach of contract and/or negligence, which McFarland denies.
The solicitors claimed their lay client lost the opportunity to claim damages and, as a result, the firm lost fees that would have been due under a conditional fee agreement.
In another line of defence against the claim, the solicitors alleged that the parties had agreed that the barrister’s fees would be capped at £50,000 plus VAT and that McFarland had lost the right to charge any fees at all by claiming in excess of the cap.
In judgment, His Honour Judge Worster struck out the defendant’s counterclaim on the ground that McFarland did not owe England Kerr Hands a duty in contract or at common law. The services under the contract were provided for the benefit of the client alone, the judge ruled. ‘If the services are not provided for the benefit of the solicitor, I do not see that the solicitor can say that the barrister is liable to him in contract for any loss he (the solicitor) suffers if the barrister breaches that term of the contract. That is not what is contemplated by these terms,’ he said.
The court added that it would be ‘surprising if these model terms led to the imposition of a duty on a barrister which had never been found in any previous authority and changed the fundamental relationship between the professions and the lay client’.
The defendant’s other line of defence also failed.
McFarland said that she would not pursue the balance of the claim if she succeeded in obtaining summary judgment on the claim up to the level of the cap, and the counterclaim was struck out.
HHJ Worster gave judgment on the claim for the capped sum and any interest due.