KA-2025-000017 - [2025] EWHC 2311 (KB)

I conclude that the DBAs fail the blue pencil test; the removal of counsel's fees would effect a major change to the bargain; and it would be contrary to public policy to seek to save an agreement that it is fundamentally unlawful and unenforceable through violating one of the core protections for the public through severance. I cannot accept the appellants’ argument that “the essential issue” is not whether there has been breach of the Regulations, or whether the solicitors “have failed to properly protect their clients’ interests”, but rather the essential issue is “simply” how counsel's fees “are treated and who should bear their costs”. The argument depends on diminishing the importance of the express provisions in the Regulations aimed at protecting the public. This is why counsel's fees are under the Regulations required to be part of the payment. I judge this to be a central plank of public protection and the “freedom to contract” claimed by the appellants here amounts to a claimed freedom to contract something unlawful. It cannot stand. While greater access to justice is desirable through DBAs, it is not at any cost, and cannot be at the cost of impaired protection of the public.

I should add that I have carefully considered the appellants’ submissions invoking Therium. That was a judgment in a challenge to an interim injunction. The funding arrangements were litigation funding agreements, which are different in nature since they do not involve legal professionals with potential conflicts with their duty to the court as officers. I find nothing in the judgment of Jacobs J that assists the appellants in a very different type of case.