Clifford Chance is on a campaign against the 500-year-old brief fee – and it’s a welcome move.
Often considered a barrister’s licence to print money, the brief fee has long caused consternation among solicitors and their clients, who are desperate for more transparency. Headline figures such as Gordon Pollock QC’s record £3m – revealed by The Lawyer last month – don’t help, of course.
But it is a bit of a myth that, had the Bank of England case settled just as Pollock was sitting down to peruse his first bundle, he would have walked away with his millions without lifting a finger. Most barristers are paid their brief in several tranches, each falling due at preordained times as trial approaches. Some sets even now quantify the brief fee purely on the basis of a simple calculation of hourly rate multiplied by preparation time.
Pinsents – perhaps less august than Clifford Chance, but certainly as assertive – might also justifiably claim to have already done away with the brief fee. Several years ago the firm moved to a system whereby barristers are paid for pre-trial preparation purely on the basis of an agreed hourly rate, which is precisely what Clifford Chance is setting out to do.
Although parameters of what constitutes a brief fee were set down back in 1991 in Loveday v Renton, it remains a peculiarly inexact science. In that case, Lord Hobhouse determined that a brief fee should account for all work done in preparation for, and attendance at, the first day of trial.
However, there is no simple equation to quantify the premium on the hourly rate that is applied, simply because the barrister is booking out six weeks of their diary.
It is that practice which has caused such resentment and why Clifford Chance’s move will be so well received by many fellow litigators. The bar will argue that you charge what the market will bear, but you can’t imagine the tenants of Herbert Smith Chambers – when it gets off the ground – being permitted to change their hourly rates on a whim.
The bar’s aggressive pursuit of international work, though, will itself demand change. Indeed, one top commercial set has already confided to us that it would be happy to see the brief fee “consigned to the dustbin”.
There will continue to be barristers raking in up to £3m a year, but the bar remains bottom of the food chain. If the client demands it, the bar will have to accept it.
Next stop, contingency fees…