Barristers serve first round of direct action

Legal aid
Criminal barristers will not enter into new very high cost case (VHCC) contracts, the Criminal Bar Association (CBA) has announced, as the first step in a “lawful, proportionate and clear” strategy for direct action against legal aid fee cuts.


The Association wrote to all heads of chambers to canvass what percentage of members would be prepared to take lawful direct action if the Government proceeded with the cuts in VHCC rates in December and advocate graduated fees in 2014. The “positive response from the Heads of Chambers to both questions is close to 100%,” reported CBA Chair, Nigel Lithman QC, on 9 October.

A 15-strong CBA Action Group is devising the step-by-step strategy, with QCs advising on the question of legality. Step two – to return existing VHCC contracts – would commence once final pro bono advice from procurement and contract silks was received, Lithman said. The Chair’s Update on 21 October said that the Association was “fully expecting that the proposed cuts to existing contracts can be challenged and that counsel will be within their rights not to work at the reduced rates.”

Hundreds of criminal solicitors and barristers had voted unanimously on 1 October to take united protest action at a Justice: Closing Down Sale meeting, organised by the London Criminal Courts Solicitors Association (LCCSA). Law Society Chief Executive Des Hudson, who received a hostile reception at the meeting, has since published an open letter defending his position. In a collective statement issued on 14 October, the Criminal Law Solicitors Association, CBA, LCCSA and Legal Aid Practitioners Group called for full Parliamentary debate on the criminal legal aid cuts. “We do not believe that any of the responses urged the Government to pursue the particular route now adopted by the Ministry of Justice. We understand that there will be some who adopt a dismissive approach to our collective alarm but we have never before seen so many in the profession united in its certain knowledge that the cuts are simply impossible to survive.”

A Ministry of Justice spokesperson said: “We have one of the best legal professions in the world but, at a time when everyone has to tighten their belts, we have to find efficiencies. We have one of the most expensive legal aid systems in the world, and have no choice but to make the savings we have already outlined. We listened closely to the original consultation responses and brought forward proposals on criminal advocacy fees that built on comments from the Bar Council and Bar Circuit Leaders, among others.”

The spokesperson continued: “We want to engage constructively with stakeholders. We worked intensively with The Law Society to reach agreement on revised proposals for criminal litigation contracts. We are still consulting on advocacy fee proposals and continue to encourage views. Any disruption of court schedules is unnecessary – it will not help lawyers and inconveniences the court, their clients and the taxpayer.”

Commenting on the news of direct action, a Bar Standards Board spokesperson said: “For the information of anyone whom it may concern, the Bar Standards Board Code of Conduct imposes obligations on barristers contemplating returning instructions that they have accepted, and for which a fixed date has been set, or when breaking an engagement to supply legal services. Unless obliged to do so otherwise by the Code, barristers must consider whether they are entitled to withdraw and whether their client is able to find other legal assistance in time to prevent prejudicing their case before returning instructions.”

“Our Code of Conduct is revised from 6 January 2014 and, whilst the fundamental principles regarding these issues remain the same, the expression of them in the new Code will be slightly different. We will be happy to re-advise those whom this may concern in due course.”

Meanwhile, the profession continues to address errors in Ministry of Justice figures. Maura McGowan QC, Chairman of the Bar, wrote to Sir Alan Beith MP, Chairman of the Justice Select Committee, to correct a point made by the Lord Chancellor in his oral evidence session on 16 October on how much a QC would earn under the reduced VHCC fees: “To give the impression that £135,000 would be paid for 60 days work, is simply not an adequate nor an accurate reflection of the true picture,” she said, clarifying that the actual fee would be £19,992. Earlier, errors in some of the consultation paper figures, discovered “in light of queries” from the Bar Council and Law Society, had prompted the extension of the consultation period by 10 working days to 1 November.

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