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

While I agree that regulation 4 contains a netting off provision, the fact that there is no prohibition there expressly preventing counsel's fees as payable in addition to the DBA contingency payment avails the appellants nothing. Netting off was not Parliament’s sole concern. The regulation 1(2) definition is clear. I conclude that there is no credible argument but that to charge counsel's fees as expenses is a clear and direct breach of the Regulations. As the appellants now rightly concede, the breach is material. The appellants cannot rely on an argument by analogy with Zuberi: that case dealt with the very different situation of early termination. Beyond that, the DBA cannot be saved by severance because the DBA fails the blue pencil test, with simple excision of the offending clauses insufficient to remedy the defects. The removal of the counsel's fees arrangements generates a major change to the essence of the agreement. Such is the flagrancy and fundamental nature of the breach of the Regulations that I judge it to be contrary to public policy to remove through severance such clauses (even were it possible, which it is not) as they run directly contrary to a cardinal statutory objective of public protection. Such a legal conclusion does not produce an “absurd outcome” contrary to the statutory objective as the appellants claim. The policy imperatives run the opposite way: protecting the public outweighs the creation of a limited and tightly regulated exception to otherwise champertous representative fees arrangements in the name of access to justice. A better reading is that any absurdity of outcome results from the construction contended for by the appellants. They agreed to pay respectively 10 and 24 per cent of their resultant financial benefit (whatever that may finally be) plus expenses. If the appellants’ construction is right, they also agreed to pay hundreds of thousands of pounds for counsel for a 15-day Chancery trial. That may well amount to more than 50 per cent limit under regulation 4(3), resulting in a further breach of the regulations. This will not be established until the value of the will is ascertained. Such a construction offers scant client protection.

Therefore, while access to justice remains an important objective, the payment arrangements must be fair, proportionate and not open to abuse or exploitation. That is why counsel's fees are included in the DBA payment as defined by regulation 1(2), which limits freedom to contract in the public interest. As the appellants recognise, the arrangements for DBAs were enacted or approved by Parliament “as the right course” after “long consultation.”

Therefore, these DBAs are unenforceable due to the counsel's fees arrangements. The appeal fails on this separate basis.