Value proposition

Case valuation revolution could benefit barristers

Mark Friston
Mark Friston

The bar is struggling with the concept of solicitor contracts despite almost a decade of negotiations.

Historically, clerks agreed verbal contracts between solicitors and barristers when accepting instructions. It was seen as gentlemanly – barristers would not be sued for negligence should anything go wrong. But, in 2001, the Bar Council ruled that written contracts must be signed when retainers are accepted.

For most, this was welcome – being able to demand fee payment from lawyers in a set time could be helpful.

But what shape the contracts should take remained, well, puzzling. The issue is the enforceability of such contracts.

Some barristers are struggling with cash flow as their clients take longer to pay up while, at the same time, the taxman is knocking at the door, making this a pressing issue.

Enter Kings Chambers’ Mark Friston. A leader in the field of litigation funding, Friston is aiming to revolutionise how barristers value cases in a move expected to bring about standard solicitors’ contracts for advocates.

“Barristers get a raw deal,” says Friston. “It’s long been the case that solicitors string things out. There’s a culture of letting things go on and on.”

As chair of the Bar Council’s CFA group Friston is introducing guidelines he hopes will be used in non-CFA cases. These will be based on three strands: suitability – whether the case is viable and how to calculate profit for the barrister; transparency – to allow everyone in the legal team to understand what the retainer covers; and viability – the commercial aspects of the case.

The guidelines are aimed at giving counsel commercial guidance about valuing cases in a world where CFAs are being done away with and contingency fees introduced.

“The legal service industry is much more businesslike,” Friston says. “It’s inappropriate that counsel is funded in a way that can’t be enforced.”

It is now up to barristers to embrace the contracts, for their own good and the good of the bar.