Ashia Centur Limited v Barker Gillette LLP [2011] EWHC 148(QB)
In a dispute between a solicitor and its client, the client alleged that in a letter of July 2007, the solicitors had agreed not to charge for work done from June 2004. The solicitors denied that was such an agreement, but in any event said that the wavier of fees was not enforceable by reason of lack of consideration. The client argued that it was in the solicitors' interests to keep acting for the client and accordingly by allowing the solicitor to act, the client had given a promise of value by forbearing from the immediately instruction of new solicitors. The matter came before a Master who agreed that there was no consideration.
The High Court (Tugendhat J) held that there was no evidence as to what the client had done following receipt of the 2007 letter. There was no possible basis for impugning the Master's findings that there was no consideration. A promise did not become contractually binding simply because the making of a promise was potentially advantageous to the promisor. The promisee had to do or refrain from doing something. In this case, there was simply nothing at all to which the client could point which might represent acceptance, a promise, forbearance or any reliance by it on the letter.
It is easy to forget about consideration, particularly in commercial transactions where it is normally imported. This case shows that lack of consideration can still be relevant at times.
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