Death to the standard fees plan
30 July 1996
18 February 2013
28 January 2013
12 July 2013
16 September 2013
8 March 2013
"Let's kill all the lawyers." The Lord Chancellor may not have said this as such but the proposed model for Civil Standard Fees for Advocates, which landed on our desks last week, has a murderous quality.
If the proposals are implemented without major alteration, I have no doubt that many barristers will be tempted to decline legal aid work.
The idea of having a flat rate per item of work or day in court - regardless of the seniority and expertise of counsel, let alone the complexity and value of the case - is contrary to common sense and fairness.
The Bar Council is not against standard fees for appropriate cases in civil work. We have made constructive suggestions to Lord Woolf as to how, and at what fee rates, these might operate in fast-track cases.
Equally, graduated fees in criminal cases are the result of detailed consultation. They are generally fair. But the new proposals are simplistic, crude and unfair.
Under the proposed scheme, the following points should be noted. First, it will apply to all civil legal-aid work and the same levels of fees will apply regardless of the tier of court. Second, no regard will be paid to preparation time. Thus a QC will be paid a flat rate £160 for an opinion, and an advocate acting on his own, a junior counsel, will receive £100.
It is not hard to see that a member of the Bar of a few years call, who writes four opinions taking two hours each, will be better paid than a more senior member who, because his cases are more complex, takes four hours, or the QC who takes eight hours. This is no sensible rationale.
Can it be right that, in difficult matters, counsel should work for many times less than is proper, or that legally-aided parties must make do with a cursory opinion, or an opinion from someone without the requisite expertise?
It is not hard to see why experienced members of the Bar will not wish to undertake legal-aid work. Clients with difficult cases will be deprived of access to the expertise they deserve, and access to specialist counsel could become a thing of the past for legally-aided clients.
These days civil cases move fast because so much is on paper - schedules, chronologies and openings. But all this requires preparation before and during trial. The graduated fee scheme will not apply to criminal cases lasting more then 10 days. But, under these proposals, a 12-day civil case will have covered far more ground than a criminal one, where all evidence is oral and the jury, unlike a judge, does not read ahead. What makes a 20-day civil action so different that it is suitable for a standard fee?
Above all, the proposals are rejected by the report of the consultants at the Lord Chancellor's Department. They considered that only family and domestic violence cases could properly be brought within a standard fee regime.
Further, for solicitors, an escape clause will apply in complex cases. But there will be no escape for advocates, despite the fact that consultants argued that High Court civil, company and commercial cases were "unsuitable" for standard fees. Yet it is mainly in such cases that the expertise of the Bar is most needed, and the consultants recognised that existing use of counsel is probably determined by legal and not commercial reasons.
This evidence and indeed all logic has been ignored by the Lord Chancellor's report. The present proposals are ill-conceived and bad news for justice in this country. They sit awkwardly with the Lord Chancellor's foreword to the White Paper in which he said the changes proposed were "reforms that will enable those who provide legally-aided services better to meet the need of those who use them".
The Lord Chancellor also said: "The Government is determined that solicitors should instruct barristers of the right quality and experience where their services are needed."
Now we know what he really meant.