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”.