Storm brews over conditional fees

A DISPUTE between the Bar and the Law Society over terms of engagement for counsel is threatening to cloud the launch of conditional fees.

Negotiations between the two branches of the profession over a model agreement acceptable to both sides have broken down.

Instead of producing a single model document for solicitors and barristers to employ, the Bar and the Law Society will be promoting alternative terms.

The Law Society has already advised solicitors they will find “certain aspects” of the Bar Council's draft terms of engagement unacceptable and is preparing its own alternative.

David Hartley, of the society's legal practice directorate, warns: “If the end result is the solicitors do more of the work and perhaps more advocacy, then barristers are going to lose some of that work. But we don't want it to come to that.”

But while the society is accused of being “unhelpful” by personal injury barristers, both sides appear aware of the dangers of a public slanging match.

Matthias Kelly, a founder of the Personal Injury Bar Association, says it is unhelpful of the society to take the view “thus far and no further”.

But he adds: “The area of disagreement is not actually that wide and on a case-by-case basis disputes can be avoided. I would hope that any aggressive stances can be avoided.”

Association chair Daniel Brennan QC says the Bar's terms are designed to protect the client by ensuring barristers are involved in risk assessment at the start and during a case.

But Frank Patterson, head of personal injury litigation at Pannone & Partners in Manchester, says his firm will not be adopting the Bar's terms and is in the process of drawing up its own tailor-made document. He says the Bar's terms involve too much contact between barrister and instructing solicitor which increases client's fees.

This week the society deliberates on its own model terms. Among the difficulties members are likely to find with the Bar's document are the need for repeat advice during the case and restrictions on the clients' rights to terminate counsel's retainer.

President of the Association of Personal Injury Lawyers Michael Napier describes the situation as “unfortunate” but says barristers and solicitors will be able to negotiate terms.

Shoosmiths & Harrison is claiming a place in legal history after signing up a client under conditional fees at the stroke of midnight on 4 July.

The agreement, signed the second conditional fees became law, is between the firm's Reading office and Mike Brown from Wokingham, who agreed to stay up late to sign the documents.

The Law Society is advising solicitors not to enter conditional fee agreements until the launch of its Accident Line insurance scheme on 14 August.

But Paul Paxton, head of personal injury at the Shoosmiths office, says the firm has got round the problem by indemnifying Brown itself until the insurance comes out.

His client is suing a training company for damages after he injured his ankle on an activity course.