In McFarland-Cruickshanks v England Kerr Hands Solicitors Ltd [2021] EWHC 525 (Comm) HHK Worster (sitting as a High Court Judge) granted an application to strike out the defence and counterclaim and for summary judgment.   The claimant was a barrister suing a firm of solicitors in relation to unpaid fees.


The claimant barrister had advised the defendant’s client.  £34,100 remained outstanding. The fees were resisted on the grounds that there had been an agreement that fees be capped at £50,000 plus vat.  This led to an argument that the “capping” agreement had been breached and the barrister was liable to repay the fees that had already been paid.

The second argument was that the defendant firm of solicitors had a counterclaim. The issue here was whether the claimant owed the defendant any duty of care.

There was a third argument in relation to the defendant counterclaiming an indemnity on relation to a claim from its lay client.  However it was agreed at the outset of the hearing that this aspect could not be pursued.



The judge found that a cap on fees had been agreed and the claimant’s claim was limited to the balance.  However the defendant’s argument that this led to no fees being payable had no reasonable prospect of defence.

    1. The key words in the email of 15.36 are “counsel’s cumulative fees for this matter”. “Cumulative fees” are to be contrasted with “potential future fees” in the 12.34 email. Further, the phrase “fees for this matter” suggest the whole case, not simply what has been estimated. I very much doubt whether there will be anything further of relevance in the conversations which preceded the emails, but that is, at least, a sufficiently plausible construction to defeat an application for summary judgment. Consequently for the purposes of summary judgment, the Claimant is limited to the principal sum of £30,245.
    1. However, the Defendant’s case goes further than a limit on fees. Claiming a sum above the cap is said to be a breach of a “fundamental term of the contractual arrangement”; see paragraph 7 of the Defence [14]. When the issue was explored in argument the case appeared to be that this was the breach of a term which excused the Defendant from further performance, and the further performance in question was payment for work already done.
  1. Mr Boynton hints at total failure of consideration in his witness statement, but the point is not pleaded, nor did Mr Virgo submit that this was such case. That was obviously the correct course to take, for it is not arguable that this is a case of total failure of consideration. Work of value was done. Nor do I see how it can be argued that the breach of the fee cap agreement is somehow so essential to the parties’ agreement that its breach can fairly be seen by the Defendant as a substantial failure to perform the contract. The term may be a condition, and its breach may amount to a repudiation which, if accepted, excuses the Defendant from further performance. But that is not how the matter is put, and even if it were, it would not entitle the Defendant to refuse to pay for what it had already received and claim back the fees it had already paid. There is no realistic prospect of success on this second aspect of the fee cap defence.


The defendant’s attempt to counterclaim was equally unsuccessful.  Put simply the claimant did not owe the defendant any duty of care, in contract or in common law.


“I conclude that on the particular facts of this case, the Claimant did not owe the Defendant a duty in contract or at common law in relation to the provision of the services, and that there are no reasonable grounds for bringing the counterclaim. In those circumstances it is to be struck out”



  1. In the course of argument, the Claimant confirmed that if she succeeded in obtaining summary judgment on the claim up to the level of the cap, and the Counterclaim was struck out, that she would not pursue the balance of the claim. In those circumstances, I will give judgment on the claim for the capped sum and any interest due and proceed to deal with the costs of the action.”