A Step Too Far
Nick Green QC explains why the Bar Council is preparing to commence judicial review proceedings against the government
Throughout January and early February I visited a number of cities in England and Wales (Cardiff, Winchester, Leeds, York, Birmingham and Manchester) and spoke to nearly 1,000 members of the Bar at the road shows. I have also visited over 30 sets of chambers and had conversations with numerous clerks and practice managers. The process is ongoing and I am planning further visits to chambers over the next few months. I am very grateful for the warm welcome that I have received. The exercise has been extraordinarily informative in enabling me to obtain a more precise and educated view of the day-to-day problems of the Bar.
Judicial review of the MoJ and LSC
The last time the Bar commenced judicial review against the government was more than 20 years ago when the then Chairman, Bob Alexander, brought an application for judicial review against the Lord Chancellor over criminal legal aid fees. Well, here we go again.
Just over two years ago Lord Carter, on behalf of the government, agreed fees for criminal defence which, whilst not generous, were intended to be stable and long term. Now the government has torn up Carter and is imposing swingeing cuts of 17.9%.
In a paradigm of un-joined up government, the MoJ and the LSC have separately issued two consultations on implementation of these cuts. However, they are, as the Minister concedes, very closely related. Indeed, the MoJ paper makes clear that the main option it proposes is contingent upon a yet further consultation which has not even been published, making it virtually impossible to respond sensibly to the consultations. To make matters worse the new consultation concerns so-called “single graduated fees”. This is an issue of vital importance to the criminal Bar and goes to the heart of the relationship between the Bar and solicitors. To link the present consultations to a future consultation on this particular topic is about as provocative as it is possible to be. In these circumstances the Bar Council and the Criminal Bar Association concluded, after careful consideration, that solicitors be instructed to prepare judicial review proceedings.
Jackson and CFAs
Jackson has reported. Lest there be any confusion the view of the judiciary and the Civil Justice Council is that consultation is complete and the next phase is implementation. Anecdotally, the Report has received widespread support from both senior judiciary and politicians. Amongst practitioners the Report seems to receive equal measures of praise and approbation.
The latter mainly emerges from personal injury and clinical negligence practitioners. Whilst a great deal of Jackson can be implemented through rule changes, to further regulate CFAs will require legislation and the timing of this will be affected by the imminence of an election and legislative priorities thereafter. On CFAs, views polarise into those who say that 100% uplift and recovery of ATE premiums was grossly unacceptable and those who say that whilst it burdened defendants it was a remarkable boost in facilitating access to justice. Jackson’s attempt to steer between these two extremes favours defendants (and insurance companies) over claimants. Given that there is a Westminster dimension to this there may yet be room for manoeuvre in the middle ground.
Our rates of pay: transparency
In my privileged position as Chairman I have asked as many sets of chambers as I can how their costs relate to their revenues. I have been endeavouring to obtain a picture of how the cost base of the Bar compares with that of solicitors. It should come as no surprise that the Bar is fantastically good value. We have a very efficient cost base. Based upon this unscientific assessment, the difference between the Bar and solicitors in the cost/revenue ratio for civil/chancery/commercial work can be as much as 60-80% and indeed, during the recession, that range can be wider. In publicly funded work the difference is not as great but can still be substantial and often up to 30% plus. Being an optimist I feel sure that the Bar can see through these difficult times and, as competition generally increases across the legal world, continue to thrive. To compete in the future we might well have to adapt our business models and this, in turn, is likely to result in increased cost but, provided we keep these under control, increased costs will not strip us of our significant competitive advantage.
In this connection some points have been made to me about the transparency of our pricing. Given our combination of high quality and low cost it is argued that there is merit in the Bar being more transparent about rates. Even rates the Bar considers to be high can be substantially lower than rates for equivalent associates and partners in law firms. If in the future we must contemplate greater competition from solicitors and wider direct access then it can only be to our advantage that clients are made more aware that the price/quality ratio at the Bar is, to be blunt, simply unbeatable.
Nick Green QC is Bar Chairman
