10 May 2022

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Direct access barrister had authority to agree costs, High Court rules

Fact he had left his chambers was not enough on its own to end retainer

It’s a deal: Barrister had apparent authority to agree order

The High Court has rejected a defendant’s argument that his direct access barrister did not have the authority to agree the final costs order after a draft judgment was circulated.

Darryl Allen QC, sitting as a deputy High Court judge, held that the fact the barrister had left his chambers during the retainer did not terminate their relationship without any evidence the defendant has proactively done so.

In the substantive ruling in Ashford Borough Council & Anor v Wilson [2022] EWHC 988 (QB), the claimants obtained a final injunction restraining the defendant from harassing the claimants and those that they represented in these proceedings. The claimants succeeded on all issues.

At trial, the claimants were represented by Adam Solomon QC and Samuel Davis. The defendant was represented by Alexander Deakin, who was instructed under the direct access scheme.

The draft judgment was circulated on 10 September 2021 and the parties asked to agree an order, including an order for costs, in the light of the findings. On 15 September, Mr Davis emailed the judge with an agreed final injunction and costs order, along with an email from Mr Deakin confirming his agreement.

This showed that Mr Deakin was employed DWF Advocacy. But, the judge said, “he was still identified as a barrister and there was no suggestion whatsoever that he was not instructed by the defendant, that he was not authorised to agree orders with the claimants or that he did not have instructions to agree the orders which the claimants had in fact proposed”.

The costs order provided that the defendant was to pay the claimants' costs on the standard basis up to 26 September 2020, and on the indemnity basis thereafter due to the claimants beating their part 36 offer.

On 20 September, Mr Deakin emailed the judge to say that Fergus Wilson, the defendant, had told him he was no longer instructed and that Mr Wilson did not agree to the order in respect of costs on account.

On the same day Mr Wilson told the claimant Mr Deakin had ceased to be his barrister on 30 April 2021 “when he walked out on Stour Chambers”. He disputed the entire costs order.

Mr Allen said the question was whether the defendant was bound by the agreed costs order: “The defendant has not provided any evidence that Mr Deakin was no longer instructed by him as at 15 September 2021. He has provided no evidence that he terminated Mr Deakin's direct access instructions/retainer prior to 15 September 2021.”

The “high point” of the defendant's position was that he considered Mr Deakin no longer "his barrister" after he left his chambers.

The judge said: “The defendant equates Mr Deakin leaving his chambers to take up a position as an employed barrister to terminating the direct access instructions. That does not follow. There is no evidence that the direct access agreement provided that the instructions would be terminated in the event that Mr Deakin left his chambers.

“There is no evidence that the defendant terminated Mr Deakin's instructions. There is certainly no evidence that Mr Deakin considered his instructions to have been terminated. Indeed, his participation in agreeing a list of typographical corrections and the draft orders demonstrates that he considered himself still instructed to represent the defendant.”

The brief to represent a client extended to considering the judgment and agreeing the orders that flowed from it, Mr Allen stressed. “I have no doubt that the defendant would have been the first to complain had Mr Deakin ignored the court's requests for an agreed list of corrections and agreed orders.”

Importantly, there was also “no suggestion or evidence” that the defendant notified the claimants that Mr Deakin was no longer instructed prior to 20 September

This all meant that agreeing the order was “entirely consistent with and within the ambit” of the barrister’s apparent authority.

“The parties are bound by that agreement. This is not a case in which the court should exercise its discretion to permit the defendant to withdraw from that agreement.”

Mr Allen added that, were he wrong on that, he would have made the same order as was agreed anyway, and included all of the part 36 consequences.

Adam Solomon QC and Samuel Davis (instructed by the first claimant) for the claimants. The defendant appeared in person.