Agreement has been reached between the Bar and the London Criminal Courts Solicitors’ Association (LCCSA) over a revised Magistrates' Court Protocol for the Greater London area, which is being published today and can be found here.
It sets out the obligations upon a solicitor when instructing a barrister in a Magistrates’ Court case in the Greater London area, and the corresponding obligations on the barrister undertaking the hearing.
It provides minimum fees for the Greater London Area, which is the region we understood from our research paid the lowest rates. The Protocol also deals with timely payment of fees.
We also wish to remind chambers of their code of conduct obligations in this matter.
Code of Conduct obligations
The 2008 version of the Protocol was accompanied by a letter from the then Chair of the Bar to chambers which drew their attention to their code of conduct responsibilities:
“In the past some chambers have been unwilling to offend solicitors who instruct more senior members of chambers regularly, and in some cases, put pressure on junior members to accept very low fees, and certainly not to adhere to the recommended rates of the protocol. Problems also arise over the, often, excessive delays in obtaining fees from solicitors. Again, the perception has been that chambers are unwilling to press solicitors for the fees. [...] under Paragraph 404.2 of the Code of Conduct, Heads of Chambers have a duty to ensure that “the affairs of [their] chambers are conducted in a manner which is fair and equitable to all barristers and pupils.” Requiring junior barristers, who are often in no position to refuse, to undertake work as unassigned counsel for rates significantly below the protocol or failure to collect their fees in the times suggested by the protocol, are likely to amount to a breach of the requirement.”
The current BSB Handbook imposes essentially the same obligations upon chambers:
“rC110 You must take reasonable steps to ensure that in relation to your chambers [...] 3.i. if you are a self-employed barrister, the affairs of your chambers are conducted in a manner which is fair and equitable for all members of chambers”
Fee chasing
The minimum recommended fee rates in the revised Protocol are unchanged from the previous Protocol and reflect the unacceptable situation that legal aid fees for solicitors have not increased over this period.
It is essential that chambers work to ensure that fees are collected promptly. In 2017 the Bar Council Young Barristers’ Committee surveyed its members who undertake Magistrates’ Court work, and found:
- 35% of respondents said they have to wait on average in excess of six months to receive their fees;
- 50% had undertaken a Magistrates’ Court case for which they understood they would never be paid.
This is in contrast with the contractual responsibility upon solicitor firms under the Legal Aid Agency Standard Crime Contract 2017:
“Your responsibility for third parties
3.3 […] If you appoint: [...] (b) any person pursuant to this Clause 3 you are responsible for ensuring that: (i) all payments are made to them for their work within 30 days from receipt of a valid invoice;”
In the revised Protocol, the LCCSA has agreed that “Payment shall be made within 30 days following receipt of counsel’s invoice.”
We expect that the great majority of firms will adhere to this. For the minority that may not, the Legal Aid Agency (LAA) are aware of the reservations that some chambers may have about reporting breaches of contract by solicitors’ firms to the them. The LAA have stated that they are willing to receive and investigate reports from chambers, without revealing the name of the reporting chambers to the firm in question.
Whether or not your chambers are prepared to report an instructing solicitor to the LAA, you must ensure that your chambers complies with rC110 in the BSB Handbook. For example, some chambers have internal arrangements such that if the Magistrates’ Court fee is slow in arriving from the solicitor, chambers will pay the junior barrister out of chambers funds, so that the junior barrister does not suffer cash-flow difficulties whilst the fee is being chased, with chambers being reimbursed when the money is received. It is imperative that such fees are chased and paid in order to avoid any suggestion that these fees have been waived and constitute referral fees. There may be other steps that chambers can take to assist towards the sustainability of the junior criminal Bar, and we would be interested to receive examples.
Finally, in our discussions with the LCCSA we learned from them how barristers can make the claiming process for solicitors easier, by providing the information in the most suitable format. The Protocol has been amended to set this out.
Richard Atkins QC
Chair of the Bar
Athena Markides
Chair of the Bar Council Young Barristers' Committee
