Quest for a level playing field

In 1991 the Lord Chancellor's Department proposed to extend the standard fee regime, which covers the majority of trials lasting up to three days, to cover all trials up to and including five days in length.

If accepted this would have covered an even wider spread of cases in which no allowance would be made in the fee to reflect either the seriousness of the charge(s) or the complexity of the issues.

For that reason the legal aid and fees committee of the Bar Council, after extensive consultation with the Bar, put an alternative scheme to the department known as graduated fees. The scheme permits greater flexibility by allowing the nature of the charges and extent of the case papers to be taken into account in fee assessment.

But the scheme also retains the advantages of simplicity and speed of calculation, and thus speed of payment. Once the necessary software is installed in the Crown Court's Crest computers and its chambers equivalents, it will be possible to simply enter the relevant data whereupon the amount owed will be printed out and the appropriate charges issued.

Throughout its discussions with the LCD the Bar has been at pains to ensure, and the department has accepted, that the profession as a whole should receive broadly the same level of income for advocacy in real terms during the year of introduction as we received in the previous year. Accordingly the new system will not of itself engender any overall increase or decrease in fees.

At the time when the research was carried out only barristers did any significant amount of Crown Court advocacy. Consequently it was only possible to construct a statistical model by using payments made to the Bar. Even now there is an insufficient database of cases undertaken by solicitor advocates to provide a statistically valid survey.

The Bar Council believes and wants graduated fees to be fair to all advocates. Equally, if one of the consequences of establishing a level playing field for all advocates in the Crown Court – a stated aim of the present Lord Chancellor – is that all advocates are paid the same rate for the same job, that seems a desirable outcome for the taxpayer as paymaster.

And of course if a solicitor advocate undertakes additional work in his or her capacity as a litigator then he or she should receive the proper additional remuneration for that work.

At present solicitors are entitled to claim for time spent in travel to court and for waiting at court but barristers are not. The Bar Council would rightly question why the public should pay the one and not the other.

When the disparity of the different payment systems for barristers and solicitors acting as advocates in the Crown Court was pointed out to the Lord Chancellor, he said graduated fees would provide the level playing field which he was endeavouring to establish.