Have you ever noticed the pouch on the back of a barrister’s gown?
Legend had it that it was originally a purse into which refresher fees would be deposited to keep Counsel on their feet. This ties in with the notion that a barrister is not entitled to sue for their fees.
The High Court in Birmingham recently considered a case where a barrister sought to sue their instructing solicitor for non-payment of fees.
The Claimant barrister, a specialist in intellectual property, was instructed by the Defendant solicitor in a case before the Intellectual Property Enterprise Court (IPEC) sitting in Birmingham.
That case related to patents held by the solicitor’s client relating to body armour which incorporated an inflatable life jacket. There was a dispute with the holder of a licence to sell the body armour in Ecuador. It was alleged that the licence holder was also selling products that infringed the client’s patents.
The barrister was instructed on standard contractual terms agreed between the Commercial Bar Association (Combar) and the City of London Law Society. These terms included a clause that the barrister would exercise reasonable skill and care in supplying their services to the solicitor for the benefit of their lay client.
The claimant, having been paid £20k, sued for the £34k balance of fees due to her.
The defendant counterclaimed alleging a fee cap of £50k had been agreed upon and, in any event, the claimant had been negligent and/or was in breach of contract.
The services provided under the contract were provided for the benefit of the lay client. The barrister did not owe a duty of care to the solicitor.
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 High Court awarded £30k to the claimant, who confirmed that she would not pursue the balance.
According to the late judicial blogger, Sir Henry Brooke (1936-2018), the “purse” is, alas, a myth
…remnant of a mourning hood assumed on the death of Charles II in 1685.