21 January 2013Print This Post

Bar seeks “low fixed-fee” role in portal and fast-track cases

Bar: excluding barristers will have negative effects

The Ministry of Justice (MoJ) is storing up even more trouble in portal and fast-track cases by cutting out barristers, the Bar Council and Personal Injuries Bar Association have said.

The pair argued that instead of abolishing the disbursement basis for paying the Bar – which it said was being done without consultation and contrary to Lord Justice Jackson’s recommendations – the MoJ should introduce a low fixed-fee system for instructing barristers that would cover advice on liability, quantum and particulars of claim.

They put forward figures ranging from £125 for handling the allocation questionnaire for RTA cases worth £1,000 to £3,000, to £350 for particulars of claims in employers’ and public liability cases worth £10,000 to £25,000.

The MoJ consultation on the proposed fixed recoverable costs makes no provision for counsel at all, and also ignores Lord Justice Jackson’s proposal that a lump sum should be added to the costs in every fast-track case to cover the average cost of solicitors instructing the Bar: £110 in RTA, £225 in employers’ liability and £300 in public liability.

In their response to the consultation, the two bodies said: “Any suggestion that solicitors will share their (very low) fixed fee with the Bar is misguided. They will not do so on the fast-track (or indeed any expanded portal) any more than they currently do under the existing portal system.”

They argued that excluding claimants from access to the Bar will have “a negative effect upon access to justice, will place excessive burdens upon the court system, will result in under-settlement of claims, will cause a rise in professional negligence claims against solicitors and will place further strains upon the Courts Service, the National Health Service and the welfare system.

“It has been the government’s stated objective to reduce the cost to insurers by capping or reducing legal fees. This objective is best achieved by involving the Bar (at fixed cost). This will prevent unmeritorious, unfocussed and exaggerated claims from proceeding.”

The response argued that the low level of the MoJ’s proposed costs “will obviously mean that solicitors will either reduce their standard of service or utilise the lowest grade of fee-earner to conduct litigation”, but having a “low fixed-fee system for instruction of the Bar” would militate against these problems.

More broadly the two bodies argued against the proposed costs, saying they will deny access to justice for injured people. “The principle behind the proposals is commoditisation of work which imposes fixed prices and abolishes hourly rates. The Bar Council and PIBA accept this principle, but it can only work if the fixed process allows the lawyers involved to provide a reasonable professional service to the injured person taking into account the issues raised by insurers and the procedure for achieving resolution.

“The MoJ’s proposed fixed fees are being imposed without any substantive evidence of the average number of hours of work needed to complete each type of commoditised case or of the proposed reasonable average hourly rate.”

They called for a fuller review of the present portal, which they described as “unfit for purpose”.

By Neil Rose

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4 Responses to “Bar seeks “low fixed-fee” role in portal and fast-track cases”

  1. Hmmm. I think the Bar is missing the point here. Two points, really;

    1) The market will (and always should) fix prices.

    2) Hourly rates (or some sort of attempt to link work to them) is dead. The market wants fixed fees. The market doesn’t (and never will, despite heartfelt pleas about quality), care how many hours it takes to do it. It’s no good, either, saying the market should care. It doesn’t. It’s up to suppliers to sort it all out at the best price

  2. Ian Dodd on January 21st, 2013 at 5:22 pm
  3. Ian Dodd, the Bar has precisely not missed the point! It is saying: involve the Bar at fixed fees because this will ensure continued quality of work done. Barristers working on fast track cases already do a large proportion of such work on a fixed fee basis, e.g. for trials. They are more used to this method of billing than solicitors are, and have never in the past let it affect the standard of services rendered. It makes no sense to cut barristers out ; they are excellent value for money and that is what the market needs.

  4. Bonike Erinle on January 22nd, 2013 at 8:10 am
  5. This is the point. This is nothing to do with market forces. This is all about a one sided lobby getting the ear of government. FOILED again! The MOJ is imposing an ill considered change which will result even more in the delegation of responsible work down to the very cheapest level of competence. This will not matter to the public in 8 out of 10 cases. But with 1 ten cases there will be a serious injustice without redress to a voter or a voter’s parent, friend or relative. And in another 1 case in 10 there will be an serious ( as distinct from standard) under settlement resulting in a big insurance claim against the surviving players. I give it two years, 15,000 redundancies, and a lot of heartache and injustice before the Mail and Express blame the lawyers again and government is forced to reverse the changes in some way. Of course they will call it reform and progress yet again but the public deserve better than to have their justice system served up by those inspired by the Khmer Rouge.

  6. Jeremy Dable on January 23rd, 2013 at 8:57 am
  7. I question whether Bonike Erinie has ever sat and wondered, at the end of a Fast Track trial, that that was an awful lot of difficult work for not much return. Travel time, petrol, chambers percentage, income tax, insurance, books and so on! I have often estimated we are probably left with about £300 to cover 2 days work, ie prep, travel and more or less all day in Court.
    Get used to this, the changes have already been bad for the Bar, Advice on Quantum is largely a thing of the past. That potential lack of an independant voice, on quantum, is bad for the public. Now it seems we are to “agree” £350 for Particulars of Claim in employers liability cases. These cases are often fraught with difficulty. Ask yourselves this, whilst claimant lawyers will be restricted in costs, what will hinder the Defendant from using all of thier almost limitless resources to win a case? And, therefore to drive a severly costs restricted claimant into the ground? In a No Win No Fee case that I currently have on the go (value perhaps 8k) the Government Agency concerned have just served FIVE lever arch files of disclsoure. How can we properly run that case on fixed fees of the type proposed. It is simply not fair to the ordinary person in the street. If the insurers want to to attack legal fees then the proper place to do that is to go before a Judge, who can review the case and give a proper, reasoned and democratic judgement. It would only take a few cases to be properly dealt with for the word to go around. The proposed fixed fee regime will very likely lead to a signifcant inequality of arms as between the indivual and big business insurers / local and national government bodies / the NHS and so on. Anyone with even a smattering of experience will tell you that it actually quite difficult to win a claimant’s case at Court. The proposed changes will be simply unfair to the vase majority of claimants.
    But then who cares?

  8. WILLIAM PARKINSON on January 23rd, 2013 at 3:50 pm