Informed Consent?

In a judgment handed down on 17 August 2021, Shaman Kapoor represented Farrer & Co. LLP at a preliminary hearing and solicitor-client costs assessment.  The preliminary hearing was listed to deal with substantial allegations made by the client that Farrers acted without the client's informed consent in their carriage of the client's application for asylum in the UK.  The client, Ms. Yertayeva, stood charged with serious financial crimes in Kazakhstan, connected to even more severe allegations of criminal conduct of her former husband, who was a high-profile figure in Kazakhstan, and reportedly the head of a business empire and convicted in Kazakhstan for embezzling sums equivalent to over £200m.

The client was described by Farrers as a high profile and successful businesswoman, a lawyer in Kazakhstan and a former board member at a Bank.  She was described as being a member of the Kazakhstan "intelligentsia", a TV presenter and a person who was very well travelled.  The client's first language was Russian, and Farrers' Ms. Hinchin, Partner and Solicitor, nearly always communicated with the client in fluent Russian.

The Points of Dispute raised the issue of informed consent in a number of respects, including hourly rates set out in the letter of engagement, an assertion of duress when signing the retainer, failing to have a translator present at the time of signing the retainer, and the instruction of experts and counsel.  They went on to take issue with the fee estimate of £280,000 being unreasonable in the context of the scope of work actually done and asserted "shoddy work".

The judgment was a resounding win for Farrers.  The Court held that the Points of Dispute were entirely inaccurate in characterising the work to be undertaken as simply the carriage of an asylum claim over a period of 10 days.  Farrer's evidence was found to be more reliable than that of the client which the Court found to be in parts plainly misleading.  The fees and disbursements could not be characterised as 'unusual'.  Applying the Court of Appeal guidance in Herbert, in every aspect of the informed consent allegation Farrers discharged the initial burden and the client failed to discharge the consequential burden.

The Court held that there wasn't and could not be any evidence as to what is or what is not the 'normal' or 'standard' cost of an asylum claim as there could be no such thing, especially for the purposes of "unusual" in CPR 46.9(3)(c).  It found that even if the client had not read the retainer (which assertion was not accepted) before signature, she would not have been free from the contractual arrangements to which she agreed.  Even though the client was in a state of distress at the time of entering into the retainer, that did not mean that she was incapable of making informed decisions.  Her assertion that she was pressurised into entering the retainer was transparently untrue.  The allegation that Farrers had exploited the client was a gross and unfair distortion.  Allegations of overcharging, exploitation and other misconduct were unfair and untrue.  The Court considered the fact that those allegations had been made at all to be regrettable.

Ms. Hinchin was recognised as typically acting for high-net-worth clients and being entitled to charge accordingly.  Her charges were said to be characteristic of specialist central London firms representing high-net-worth clients, and she was found to have provided a cautious and supportive approach in keeping with the clients' expected level of service.

Shaman was instructed by Iain Stewart and Will Hanson.