On the 5th January 2017 the Ministry of Justice published a consultation entitled "Reforming the Advocates Graduated Fee Scheme". The consultation is open until the 2nd March 2017 and the link can be found here;
The impact of the changes proposed in this model cannot be underestimated by a profession in which a substantial number of individuals and firms deliver advocacy in the Crown Court. The changes will impact not only upon the Independent Bar but also In-house Counsel and Higher Court Advocates.
The Bar Council and others have been developing the new proposal for over twelve months and had retained the services of Professor Chalkley.
On the 6th December 2016 the CLSA was asked for feedback on the proposed scheme. The CLSA was not provided with sufficient information to discharge that task. At that stage we indicated that we were not prepared to provide feedback on the proposed scheme under such conditions and both oral and written representations were made for transparency.
The CLSA remains of the view that this is not a scheme which can be commended to the profession for a variety of reasons. The profession will also recall that there was an announcement by The Law Society on the last working day before Christmas, Friday 23rd December, that they were withdrawing from the process. The question as to whether or not, whilst not endorsing the scheme, the CLSA should continue to participate in the engagement process was discussed on List A over the Christmas break. Some members felt that the CLSA should remain at the table, others expressed a different view. The Consultation was published on the 5th January which renders that debate otiose.
It is incumbent upon each one of us to consider the consultation and respond by the closing date of 2nd March 2017. The consultation must be considered as part of a bigger picture. The last few years have been turbulent to say the least for the profession and this is not the time for us to sit back in silence. Whether you and/or your firm conduct work under the AGFS or not you must consider any consequential effects that the re-structure may have.
The CLSA will be submitting a response on behalf of its members and you are encouraged to feed into that by e-mailing your thoughts to email@example.com with 'Reforming the Advocates Graduated Fee Scheme' in the subject line
We would like to publish our response as soon as possible to assist our members. In the meantime, there are a few points that you may wish to consider:
The Allocation Guideline
It would be a folly for anyone to assess the impact of this scheme without taking into account the effect of The Allocation Guidelines. We are only just seeing its effect in practice in our courts. It is undeniable that the end result will mean far less work in the Crown Courts for Advocates than there is now.
The efficacy of any scheme has volume as its achilles. This scheme does not take into account the Allocation Guideline and drop in volume. Payments for hearings might seem attractive in the first instance with the possibility of stock piling fixed fee appearances but that simply is not going to work if the cases are not there because they have been kept in the Magistrates Court. We have already received reports from various areas that many cases previously regarded as not suitable for summary trial are now being tried summarily on the basis that they can be committed for sentence if needs be. Regardless of the rights or wrongs of this, the effects of these decisions are catastrophic for some given the appalling levels of remuneration for Magistrates cases, elected cases and committals for sentence which have the potential to become the majority in terms of case load for some.
This scheme is stated to be “cost neutral”. This therefore means that the balance has to be shifted. You may of course draw your own conclusions but one analysis is that money is being taken away from the guilty plea cases and being moved to trials. You will need to carefully examine how this affects your business model or you personally as a Junior Barrister.
There is a 10% increase for QCs. Led Juniors will be paid the same as Juniors alone. Arguably this scheme rewards senior advocates with a predominantly trial caseload and greatly penalises more junior advocates with a more varied caseload. You may also question where the 10% increase is derived from given the promised cost neutrality.
The definition of a “cracked trial” is to change under this scheme, the trigger point being submission of the Certificate of Readiness for Trial. There is a marked difference in payment for a case that concludes in advance of this point. You might think that this is a distorted view of the work required to be done by the advocate and the wrong point at which the higher fee should bite.
This scheme does not deal with electronic evidence. Should this new scheme be implemented, the prevailing uncertainty as to remuneration for this type of evidence will persist. Any review of the scheme that does not deal with this aspect is incomplete. The preamble of the Consultation refers to the changing times in which we practice which is very true but yet difficult to reconcile with the fact that in a digital era, electronic evidence is not dealt with in a wholesale review. This is fundamentally wrong.
Leveson/ Better Case Management
Herein lies a rigid dichotomy. The aim of better case management is to encourage early guilty pleas where appropriate and yet this scheme weights remuneration at trials which might encourage behaviours militating away from timely pleas. It is also at complete odds with Sir Brian Leveson’s recommendations. The two cannot operate together. The Senior Judiciary insists upon early engagement, in which case front loaded case preparation must be properly funded. Defendants are continually reminded that they will only receive credit for pleading guilty at the very earliest opportunity and yet we now have the suggestion that advocates will be better remunerated the further the case goes. The honourable and diligent majority might therefore form the view that this weighting will lead to a reduction in fee income within their daily practice.
It is not a dirty concept. What the profession is yet to be told is whether or not the second 8.75% cut will be restored following its suspension. The LGFS scheme is currently subject to review and an anticipated consultation. It does not assist the profession to have to make commercial assessments in a piecemeal fashion against a background of uncertainty.
The same commerciality principle applies to the Independent Bar. It is common knowledge that many firms have sought to conduct advocacy in-house in order to supplement the reduction in fee income elsewhere as it is the only way of providing sustainability. Whether this advocacy is conducted by in-house counsel or higher rights advocates the net effect is a reduction in work load for the Independent Bar. This must therefore be factored in by barristers responding to the consultation because if some firms are facing further cuts they will have no choice but to look elsewhere for income.
As said at the beginning the profession as a whole faces further uncertainty. The allocation guidelines have not yet taken effect, there is still the question of whether Magistrates sentencing powers should be increased to twelve months which has the potential to cause huge drops of volume in Crown Court work. There are court closures still to happen and silence over the suspended 8.75% cut. You may take the view that without providing some assurances the MoJ cannot reasonably expect the profession to consider a restructure at this point in time.
Do the Maths
Members are encouraged to consider the tables contained within the Consultation and run some examples with their own claims to assess the impact upon their firms.
These are just some of the points to consider, the main message being please do consider and most importantly do respond. This is your chance to be heard and to have your views known.
The CLSA is anxious to provide support to members and also to obtain their views. Debate is always welcome here.
Zoe Gascoyne - Chair CLSA
Sarah Grace - Vice Chair CLSA