Angry barristers' reports of solicitor-advocates grossing up to twice as much as them in legal aid fees for the same advocacy work in the Crown Court, has spurred the Bar Council to seek urgent changes to the fee rates.
The Bar is concerned that solicitors' hourly legal aid rates for minor court work, established before solicitors won higher court rights, allow them to earn more than most barristers can under the Bar's case fee and daily refresher payments system.
The Bar says the anomaly on fees is not only unfair, but also represents an extra cost to the public purse at a time of greater restrictions on legal aid cash.
Robert Seabrook QC, Bar Council chairman, says: “We feel very strongly that there must be a level playing field. It is utterly unacceptable if the fee regulations can't be brought up to date to accord with the changes in rights of audience which the Government has brought about.”
Criminal Bar Association members began reporting the fees anomaly after recent experiences in cases heard in the London and Birmingham Crown courts.
CBA secretary, Stephen Kay, says members are angry and surprised, particularly in view of their attempts to ensure money is not wasted in the criminal justice system.
“It's a kick in the teeth to the criminal Bar,” says Kay.
The Bar says the problem occurs in non-standard fees work, where cases exceed the three-day standard fee limit. It relates particularly to the u62.50 per hour rate for senior solicitors (junior solicitors receive u54.50), which is detailed in the Legal Aid Criminal and Care Proceedings Costs Regulations 1989.
Peter Birts QC, head of the Bar's legal aid and remuneration committee, says the hourly rate was not meant to include trial work, but was related instead to pre-trial matters and bail applications. “Its current application was not intended in the regulations, and it's putting the Bar out of business,” says Birts.
“We want the Lord Chancellor's Department to acknowledge the unfairness and the high cost involved,” he says.
The Bar hopes that a new system called 'graduated fees', a 10-day standard fee structure applying to all advocates, will soon be implemented by the Lord Chancellor's Department.
Graduated fees were proposed by the Bar's Seabrook committee as a way of obtain-
ing earlier payments for barristers, ensuring earlier preparation and fewer cracked trials.
They may also reduce – but not remove – the advocacy fee anomaly because a 10-day system would cover three quarters of criminal trials.
However, delays have meant the LCD will not introduce them until April 1995, and the Bar wants action now to solve the problem.
Law Society policy executive, David Hartley, says the Lord Chancellor's setting of advocacy rates is based on various criteria, including overheads. The Bar has not approached the society on the matter, but it will be discussed in relation to graduated fees, Hartley says.