11 March 2002
The Law Lords came a cropper last week when it was discovered that they had failed to implement procedures for handling a costs dispute involving conditional fee arrangements (CFAs) (The Lawyer, 25 February).
This House of Lords blunder came to light after a shrewd paying party's decision to contest paying the other side's CFA uplift as the House had no such procedures in place. It was put before the Clerk of Parliament, the House of Lords equivalent of a costs judge, who upheld the paying party's argument.
However, it was down to an appeal committee comprised of Law Lords to throw out the paying party's claim and demand that the Lords implement CFA procedure. The High Court and Court of Appeal have had CFA procedures in place since 1999.
For the Lords to be told, particularly by their own members, that they fouled up by ignoring the issue of CFAs must, we hope, be the cause of some red faces. But it also shows that the Lords have failed to take stock of the importance of CFAs when the rest of the legal community sees it as something that cannot be ignored. For example, whereas traditionally CFAs have been related to personal injury cases, now they are being used in commercial, competition, libel, IT and intellectual property.
And while the House has ignored CFAs, other courts have had to deal with the tribulations arising from them. Books have been written on the subject, not least by former Law Society president Michael Napier. For the Lords to muddle through in this way suggests that their heads are not fully out of the sand.
New Labour's love affair with bureaucracy is unfortunately increasingly impacting on lawyers' lives. Proposals are being looked at to widen accreditation from immigration barristers to include family and commercial barristers. The former have to apply to the Immigration Practitioners' Accreditation Board for a six-stage competency test and then reapply five years later.
Many immigration barristers regard this as an affront to their reputations and a mockery of their efforts to date: college training, the Bar Vocational Course, pupillage, chambers entry, compulsory continuing education, market pressures to perform outstandingly, as well as the various quality guides such as BarMARK and the legal press.
Forcing out the bad eggs is okay, but such gauges of quality seem unnecessary when one considers the volume of far less regulated professionals and non-professionals doing both publicly and privately-funded work. Also, only those in chambers with a substantial immigration focus have to be accredited, while others do not. So what happens to the latter group if it is decided that only accredited barristers can be instructed by panel solicitors, which is a proposal currently being looked at?
The modernisation of the Commercial Court
It has not been long since the Lord Chancellor's Department issued its consultation paper on the modernisation of the Commercial Court, and lawyers are already frowning with worry over how it will be funded. Few expect the Treasury not to slap the cost on to lawyers and their clients and the belief is that it may make lawyers pay a daily fee. The amount will be relative to the size, cost and length of the litigation.
The Singapore example, where it is said anecdotally that some lawyers choose arbitration rather than going to its recently modernised commercial court to avoid similar payments, is providing food for thought here. Some members of the English bar are seeking evidence from their Singapore counterparts.
Such concerns are surprising. Surely, in return for fully operational facilities and a guarantee that six commercial law judges will be present rather than a mixed bag, including one or two flown in at the last minute from elsewhere, lawyers should not mind coughing up a bit extra. After all, what is a few hundred pounds a day compared with the millions at stake?
An idea mooted several years ago was to raise the cost of issuing writs. The Lord Chancellor rejected it as it would mean parties paying double the price of the Queen's Bench and Chancery Divisions. However, paying daily tariffs, at least in the short term, seems sensible enough.