CBA have announced that their members have voted in favour of further action

22 June 2022

You will all know by now that the CBA have announced that their members have voted in favour of further action. They have issued amended guidance and a pro forma letter to solicitors which can be viewed here.

CBA guidance regarding their action

The bar action is twofold:-

1. No new instructions from 27/6.

2. Not attending Court on days of action beginning on 27th and 28th June (see paragraph 7 of the attached guidance) .

The Lord Chief Justice has made a statement.

The Law Society have provided guidance which we recommend considering.

The Funding for criminal defence work, in both litigation and advocacy has been underfunded for years and decades. The Independent Review into Criminal Legal Aid laid bare the ongoing crisis in the retention of barristers and solicitors. The results of the CBA ballot show that there is the same strength of feeling in advocates rooms as there is solicitors rooms in courts across the country. The funding package proposed by the Government in response to the review falls well short of the settlement needed to reverse the trend of barristers and solicitors deciding that a career in legal aid work is not something they can afford to choose. The decision of CBA members to vote for this action is an inevitable reaction to this state of affairs.

For our part, the immediate concern is that solicitors and firms are not put into difficulty by their chosen advocate refusing to work on a particular day and cover hearings and trials that they have been instructed to cover. We have professional obligations to our clients and the Court and contractual obligations to the Legal Aid Agency.

The situation is fast moving. We are awaiting the response of the CBA to the statement of the LCJ. You will note that CBA proposal is that our client’s are informed regarding their non-attendance (they had previously indicated that we should seek the permission of the client for their advocate to not attend and have sensibly removed that suggestion). You will also note their further request that we consider sending a representative to court when an advocate does not attend. The implication is that the Court will not look favourably on applications to adjourn on the basis of the non attendance of the instructed advocate.

We note the Law Society Guidance that the unavailability of the instructed Counsel does not mean there is an obligation upon in house Solicitor-Advocates to take over conduct of the advocacy. Should a Judge signal that they will grant a Solicitor a right of audience they would not normally be entitled to, there is no obligation on that Solicitor to accept that right of audience and conduct the hearing.

Solicitors will judge the correct course of action on a case by case basis. However, the courts must understand that Solicitors firms do not have infinite resources and will have professional commitments to keep in the Magistrates Court and the Police station as well as the Crown Court.

We are ready to assist any CLSA member affected and members are invited to contact us at should they want assistance.