Two barristers, one of them a silk, have lost their appeal over what was described as an ‘all or nothing’ claim against a former client for £150,000 in fees.

Michael Glaser KC and Victoria Miller, of London family law set Fourteen, had taken action against Katharine Jane Atay for payment of outstanding fees under the terms of a written agreement entered into under the public access scheme.

Glaser and Miller said in letters of agreement that they would conduct the work and a pre-trial review hearing for £90,000 and £45,000 respectively plus VAT, the High Court heard.

Their agreements included a requirement for Atay to pay non-recoverable fees in advance. Atay had made two advance payments - totalling £25,100 to Glaser and half as much to Miller. But on the day the bulk of the fees became payable under the terms of the letter, Atay emailed the barristers’ clerk indicating she no longer wished to instruct them and refused to pay any more. Atay argued that the application of the Consumer Rights Act 2015 meant the claimants were not entitled to their fees.

Mr Justice Turner, in the High Court in October last year, ruled that the payment terms in the agreement were unfair. A unanimous Court of Appeal last week upheld that ruling.

In Michael Glaser KC & Anor v Katharine Jane Atay Lord Justice Nugee said that the unfairness in this case had been that the effect of the payment term made the entire fee unrefundable if the hearing were adjourned. It did not follow that the term requiring payments upfront was unfair.

‘The contract was inadequate for the sort of case for which it was used’, he added. ‘I do not mean to say that counsel can never stipulate for payment if a case goes off at a late stage. Nothing I have said is intended to prevent counsel from devising and agreeing with their clients contracts that fairly balance their own interests in not being left with gaps in their diaries with the interests of their clients in not paying for work that is not carried out.'