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

It seems to me that faithfully applying the logic and analysis in Candey, the DBAs in this case are unenforceable for want of recovery of anything from the respondent before the end of the proceedings. There were two issues in the trial before Green J. First, whether the deceased knew and approved of the 2014 will; second, whether the execution of the 2014 was the result of the claimant’s (respondent’s) undue influence. He ruled in favour of the appellants on the first issue and against them on the second. No assets were transferred. Nothing changed hands. Nothing was recovered by the appellants from the respondent.

I have no hesitation in concluding that the DBAs in the instant case do not meet the requirements under the Regulations for permitted payment as set out in Regulation 1(2) and Regulation 4. On this basis, therefore, both DBAs are unlawful and unenforceable. Insisting on compliance with the statutory conditions (including requirements in the Regulations) might have results that are “uncompromising”, but although the outcome may be “tough” in Garrett terms, the outcome is not “irrational”, or unreasonable, as the appellants submit. The twin objectives of effective protection of clients and the proper administration of justice decisively and overwhelmingly outweigh the effect on the legal representatives in this case. There is no absurdity. Indeed, I judge that it would be wrong in principle to authorise irresolute, inconsistent and half-hearted compliance with the Act and the Regulations. I remind myself of the comment by Stuart-Smith LJ in Diag Human. It is not for this court to seek to dilute or “modify” the public policy contained in the Act and Regulations, a key objective of which being to achieve effective protection of the public through the strict enforcement of the conditions in the Act and requirements in the Regulations.

The DBAs being unlawful and unenforceable on this basis, this ground of appeal fails. In consequence, the appeal fails. Nevertheless, I proceed to consider the second issue before the court.