Interesting costs webinar from Gatehouse Chambers’ Costs and Litigation Funding Team examining the Consumer Rights Act 2015 in light of the recent decision in Glaser v Atay [2024] EWCA Civ 1111.
That case determined that the Direct Access barristers’ terms did not comply with the Consumer Rights Act 2015 and that the contract was unenforceable. The barristers were not entitled to be paid on a quantum meruit basis.
This decision will inevitably lead to greater scrutiny of retainer documents in solicitor/own client disputes to see whether there are potential Consumer Rights Act challenges.
In between the parties detailed assessments, such challenges are potentially more difficult without sight of the relevant retainer documents. However, the webinar raises the interesting requirement under s71 of the Act:
“Duty of court to consider fairness of term
(1) Subsection (2) applies to proceedings before a court which relate to a term of a consumer contract.
(2) The court must consider whether the term is fair even if none of the parties to the proceedings has raised that issue or indicated that it intends to raise it.”
Does this impose a duty on the costs judge to take upon themselves the task of scrutinising retainer documents to ensure they are compliant with the Act even if not prompted? It certainly raises the possibility that paying parties will start raising preliminary points of dispute highlighting the costs judge’s duty under s71.
Two further interesting point are highlighted in the webinar:
- Is a clause within a retainer entitling a solicitor to raise interim statute bills potentially unfair under the Consumer Rights Act 2015 because it causes a “significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”?
- Is a clause within a retainer that allows a solicitor to unilaterally increase the hourly rates charged, without specifying the mechanism for doing so, unfair for the same reason?