The new terms, drawn up by the Bar Council’s Implementation Committee, are intended to be transparent and enforceable, and to provide more protection to barristers (particularly young barristers) in countering unacceptable delays in payments. The consultation is being carried out with members of the Bar and a number of interested bodies, including the Approved Regulators of lawyers practising in England and Wales.
The move to adopt enforceable contract terms is consistent with the liberalisation of the legal services market and forms a part of the Bar Council’s modernisation agenda. Traditionally barristers take instructions from solicitors on the Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 (as amended). They fail to address the need for clarity in relation
to the professional obligations of barristers and solicitors to each other and to the lay client, and lack an effective method of enforcement of those obligations and rights.
The Bar Council's Implementation Committee has addressed these shortcomings and drawn up new contractual terms to replace the existing Terms of Work and abolish the Withdrawal of Credit Scheme. Whilst barristers and solicitors will continue to be free to agree any terms, it is envisaged that these new contractual terms will be used wherever alternative terms have not been agreed. The new terms would apply only to privately– funded matters or where the solicitors would pay counsel direct. However, the consultation is of interest to practitioners of publicly-funded work as it is proposed that the Withdrawal of Credit Scheme be replaced by an advisory List of Defaulting Solicitors scheme. It is envisaged that the List of Defaulting Solicitors would not only apply to solicitors who defaulted on payment of privately-funded matters but also to those who failed to carry out their obligations to ensure barristers are paid in respect of publicly-funded matters.
Commenting on the consultation, Sarah Asplin QC, Chairman of the Implementation Committee, said:
"The present system is outdated and is a barrier to entry to the Bar of those from less advantaged backgrounds who can ill afford unacceptable delays in payment and write off significant amounts of fees due to lack of an effective enforcement process.
It is in the interest of all involved in the administration of justice that the terms on which barristers are instructed by solicitors are transparent and enforceable. Clarifying and enabling the enforcement of rights and duties of both barristers and solicitors can only be beneficial to any client needing access to justice and I believe these new Terms meet this need".