Barristers should be able to directly negotiate with clients when hammering out conditional fee deals, according to government minister Geoff Hoon.
The Parliamentary Secretary at the Lord Chancellor's Department, said it made sense for barristers to become closely involved in negotiating the uplift for a conditional fee.
Any direct negotiation over the uplift – the percentage of the damages to which a lawyer is entitled – would end the Bar's traditional arm's-length relationship with clients.
Hoon suggests that barristers could sit alongside solicitors when a client uplift was being finalised, instead of later working out a separate deal with them.
“I understand and appreciate the point that once a solicitor has agreed an uplift on a conditional fee, it is difficult for the barrister to agree a separate one, because he is brought in last,” Hoon told The Lawyer.
Hoon said the difficulty for barristers was that, unlike solicitors, they have little experience in negotiating an uplift, or percentage, of any winnings.
He suggests that barristers' clerks may need to step into the role for them.
But personal injury lawyer Matthias Kelly slammed Hoon's suggestions as “impractical”.
The Old Square Chambers barrister said that the time, cost and trouble involved in negotiating any uplift would not make the exercise worthwhile.
Bar Council chairman Robert Owen QC said separate barrister and solicitor uplifts could confuse a client.
In a further blow for the Bar, Hoon has expressed serious doubts about the validity of its proposed Conditional Legal Aid Fund (CLAF), whereby successful litigants pour a percentage of their damages into a central legal-aid type fund.
Hoon commented that Owen had still to satisfy him that the start-up costs and the costs of underwriting the scheme – which would both fall on the Government – would not be prohibitive.
“For all their enthusiasm for this scheme I don't imagine the Bar is proposing to provide the initial start-up costs,” said Hoon.
He added: “We have a very considerable concern that if we introduce CLAF alongside conditional fees, the best cases will be picked off in conditional fees, leaving less good cases for CLAF.”