If you have ever been troubled by not fully understanding the rules behind barristers’ fees, and the link with Roman orators, look no further. His Honour Judge Davis-White QC provided us with a clear explanation of the issue, and some interesting insights into legal history, in a ruling on bankrupt barristers earlier this month. He said: “Until 1991, there was thought to be a rule of public policy, inherited from the Romans, that a barrister could not enter into contractual relations with regard to the services that he or she performed.”
HHJ Davis-White quoted from Blackstone’s Commentaries on the Laws of England. Blackstone said that Roman orators “practised gratis, for honour merely or at most for the sake of gaining influence”. In the same way, Blackstone said barristers were given money as an “honorarium”, not “salary or hire, but as a mere gratuity, which a counsellor cannot demand without doing wrong to his reputation”. Capping fees is not a new idea, and Blackstone goes on to explain that honorariums were limited “by a decree of the Senate” to no more than 10,000 sesterces, which he converts into “about £80 of English money”.
HHJ Davis-White then reviewed the case law. Not long after Blackstone, Lord Kenyon referred in Turner v Phillips (1792) to “the general opinion of the profession, that the fees of barristers and physicians were as a present by the client, and not a payment or hire for their labour”. The judgment of the court in Poucher v Norman (1825) restated the position, linking barristers with physicians, and conveyancers with surgeons.
“The general rule is, that any man who bestows his labour for another, has a right of action to recover a compensation for the labour. There are two exceptions to that rule, viz. physicians and barristers. The law supposes them to act with a view to an honorary reward. In the other degrees of those professions parties may recover for their services. An attorney may recover for conveyancing. So a surgeon may recover for attendance.”
The position had not changed by 1863 and Kennedy v Broun and Wife, with the Court of Common Pleas holding that: “We consider that a promise by a client to pay money to a counsel for his advocacy, whether made before, or during, or after the litigation, has no binding effect; and furthermore, that the relation of counsel and client renders the parties mutually incapable of making any contract of hiring and service concerning advocacy in litigation”.
By the time of the First World War, the Court of Appeal powerfully restated the honorarium approach in Wells v Wells (1914), saying it is “settled beyond all question that counsel’s fee is not a debt but an honorarium, the fees are payable as a matter of honour and not of legal obligation” and “counsel can no more sue for their fees when the solicitor has received the money than when he has not received it”.
Even in the Sixties, while other deep-rooted traditions were being questioned and in some cases swept aside, the honorarium concept held its ground. Lord Denning, Master of the Rolls, in Rondel v Worsley [1967] 1 QB 443 summed it up: “Beyond doubt the barrister was treated differently from other professional men. He could not sue for his fees. He could not even make a contract for them with his client. Nor with the solicitor who represented the client.
“The obligation to pay him was an obligation which was binding in honour, not in law. Such was the position of the advocate in the Roman law. Such was the position of the barrister in our English law.
“It was the tradition of centuries that what he received from the client was a gift or honorarium, and not a stipulated wage. To this day his very robe bears witness. At the back of it there is still the flap of the little pocket where the client could place his gratuity. In the pretence that the barrister did not know he was being given a reward!”
However, HHJ Davis-White said the current view was “that the ‘little pocket’ referred to by Lord Denning MR was not to receive a fee secretly but was a vestige of historic costume”. According to Ede & Ravenscroft’s History Of Legal Dress: “The ‘bag’ at the back of the barrister’s gown is not – as popularly thought – for legal fees, but has its roots to a mourning hood, similar in style to an academic hood”.
The Court and Legal Services Act 1991 changed everything, abolishing the traditional rule preventing barristers from entering into contracts for their services. The House of Lords responded by overturning Rondel v Worsley in Arthur JS Hall & Co v Simons (2002), allowing barristers in both civil and criminal cases to be sued for negligence. Barristers could opt to work on contractual or non-contractual terms. Pressure on solicitors to pay counsel what was owed in non-contractual cases was applied through the ‘withdrawal of credit scheme’ (refusing to work with solicitors who failed to pay), followed by the List of Defaulting Solicitors.
According to HHJ Davis-White, this turmoil in the world of barristers’ fees has left us with a rather more complex situation than in the good old days of honorariums and back pockets. HHJ Davis-White said that, although not necessary for his judgment, his “preliminary view” was that the position on fees for barristers instructed by solicitors, as found by HHJ Barker with regard to overseas lawyers in Singh v Sinel (2014), is now as follows:
(1) If terms of engagement are expressly agreed to be on a non-contractual basis then there is no legal right in the barrister to claim his fee which is, in effect, payable as an honorarium as traditionally prior to 1991 it was.
(2) If a contract is reached, then the barrister has the usual contractual remedies including damages and/or in debt.
(3) If no contract is reached, and there is not express concord that the engagement is to be on non-contractually binding terms, there is no reason why restitutionary remedies should not be available in the usual way.
The surprising thing, for me at any rate, is that the honorarium principle has not died out completely and still persists as an option where it is clearly chosen. Like Hadrian’s Wall, it lives on, reminding us of the great orators of the past.
Note: As some of you may have noticed, the judgment of HHJ Davis-White was overturned by the Court of Appeal in April 2019. Lord Justice Newey was much less interested in the history of barristers’ fees and much more in the issue at stake – whether “where a bankruptcy order is made against a barrister, fees due to him pursuant to an honorarium rather than a contract vest in his trustee in bankruptcy”.
Newey LJ ruled that the debt owed to the barrister was ‘property’ for bankruptcy purposes, saying: ” Were any other professional to become bankrupt, his aged debt would vest in his trustee, and so should a barrister’s.” Lord Justices Singh and Baker agreed.
Nick Hilborne 