The Bar Standards Board has moved to correct a regulatory anomaly that would have forced barristers doing very high cost cases (VHCCs) to work for the reduced fees being introduced by the government.
The regulator said the move was necessary because the Ministry of Justice laid down secondary legislation to amend fees paid to barristers doing VHCC work - cutting them by 30% - which could mean that the fees would for the first time be subject to a provision in the cab rank rule ‘deeming’ them to be reasonable fees.
The ‘deeming provision’ in rule 604 - introduced before the BSB came into being and when the Bar Council as a representative body negotiated legal aid fees - was never intended to apply to VHCCs.
From 6 January 2014 the BSB’s new code of conduct and handbook come into force, abolishing the provision, leaving it up to individual barristers to judge whether they can reasonably decline to accept instructions in legally aided work.
But the secondary legislation would have meant that fees for VHCCs would be subject to the deeming provision for a period of a month.
To avoid this, the BSB has issued a policy statement to the effect that deeming provision will not be treated by the BSB as applicable to VHCCs during the interim period, essentially bringing forward the regime change by a month.
Most barristers have indicated that they will not be willing to continue to work on current cases or accept new cases when the reduced fees come into effect. The BSB’s policy change enables those barristers to decline the case without breaching regulatory rules.
In relation to other types of publicly funded work, the BSB said: ‘There will be a risk to consumers and to the administration of justice if barristers were to treat themselves as free to withdraw from ongoing cases regardless of how serious and disruptive the consequences may be for the client and for others involved in the trial.’
The board suggested it may be in the public interest to require barristers in these situations to consider ‘a number of factors and assess the proportionality of ceasing to act’.
The BSB is therefore ‘urgently’ considering revised guidance on the rules relating to the withdrawal of instructions, clarifying the relationship of those rules to rules defining a barrister’s obligations to the client and the court.
In the meantime, the regulator reminded barristers that they must ‘reconcile’ any right to withdraw because of a change in terms with their professional obligations towards their client who is not responsible for that change.
Dr Vanessa Davies, director of the BSB, said: ‘As a regulator, it is not for us to have a view about how much barristers should be paid, which is why the deeming provision was removed from the new code altogether.
‘It’s confusing for a rule to change its meaning for one month or so, so we have acted to ensure consistency and clarity about what the public can expect from the bar.’
The BSB’s full policy statement can be read here.