Bar plans resistance to fee cuts

Legal aid
Barristers intending to exercise their contractual right to give notice of termination of existing VHCC contracts were advised that they had until Sunday 1 December to inform the Legal Aid Agency (LAA) in writing.

The Ministry of Justice laid Statutory Instruments to usher in its 30% fee cuts for very high cost cases (VHCC) last month. The SIs, which are subject to Parliamentary approval, are intended to come into effect on Monday 2 December.

Rolling updates have been issued by the Bar Council to help barristers understand their options “without prejudice to any other steps that the Bar Council may wish to take in relation to the making of the Order and the scrutiny by Parliament of the Order”. Final advice was awaited as Counsel went to press.


The Bar Council said on 11 November that “anyone holding such a case, who decides they do not want to accept work on the new terms, must give notice of that intention in writing by Sunday 1 December.”

“We understand that email is not an acceptable form of notice but fax will suffice. We have invited the Secondary Legislation Scrutiny Committee and the Joint Committee on Statutory Instruments to investigate the propriety of the Ministry’s action at their next meeting.

“You do not need to do anything until we know what happens at that meeting. We will let you know as soon as possible. It is vital that everyone has all the necessary information before making any decision.”

The Bar Standards Board was also meeting to formulate additional guidance on barristers’ professional obligations under the Code of Conduct (again, as Counsel went to press). In the meantime, the Bar Council advised barristers to contact the ethical enquiries helpline on 020 7611 1307.

Contract amendment notices were sent by the LAA to barristers holding a criminal VHCC contract on 31 October – before full details of the proposed amendments had emerged. The Ministry subsequently published the SIs on its website.

The Government had consulted the Bar Council on amending the VHCC contracts, to which the Bar Council submitted its strong objections on 18 October. In its response, the Bar Council set out that “the contractual right to terminate following amendment is clear”.

“If the advocate does not wish to accept the amendment, they can walk away from the Contract and all performance of future obligations under it beyond the termination date.” The Bar Council also expressed the concern that if the amendments proceeded in the manner proposed, the LAA would be able to avoid future consultation over any further changes to payment rates.

Attorney General Dominic Grieve QC MP argued against withdrawal from VHCC contracts at the Bar Conference on 2 November, but said that the decision must be the responsibility of individual barristers (see p16). He said that that although the disruption caused to the courts might “bring about the changes you desire”, he added that it also “carries the very serious risk that within government there will be a view that people should look elsewhere for the service to be provided”.

The Criminal Bar Association (CBA), though, reiterated its membership’s resolve not to work under the cut rates at a meeting with the Lord Chancellor on 4 November. The CBA stance is supported by Criminal Law Solicitors Association Chairman, Bill Waddington, who said that although this was a matter for individual firms, “it is our strong view that solicitors should not accept returns and act as HCAs in such cases refused by the Bar.” The CBA has also urged chambers to sign up to a pledge demonstrating the unity between solicitors and the Bar on the matter (see www.criminallawyersunited.com).

At a CBA rally on 16 November, CBA Chairman Nigel Lithman QC launched a hard-hitting campaign, Who will prosecute the paedophiles, murderers, rapists?, quickly picked up in the national press. Refusal to work at the new VHCC rates was just the first protest step, Lithman said, and would be followed by refusal to accept cases under the new advocate graduated fees. “This rally has sent a message to the Government, as have the early indications to the courts of cases failing. What is next in our arsenal is the potential for a day of action,” he added.

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