Chief Executive Carolyn McCombe observes:
“Most clerks regard fees as their preserve and may well be offended if a pupil or junior tenant appears to be critical of the fee. However, it is obviously important that people understand the rationale of any fees, particularly if they are out of the ordinary.
“The new costs budgeting regime has changed the mind set of all involved. There is now an expectation that barristers will keep within budgets and provide adequate warning and reasons if there is any risk of them being exceeded.”
All sets differ, but you might like to note her set’s approach to the thorny problems of agreeing fees in situations which can cause misunderstandings between clerks and junior tenants.
- It is good practice for clerks to let a member of chambers know if either a capped or fixed fee has been agreed in relation to any particular piece of work. Usually, such a fee will only be agreed once the papers have been received and the barrister has given his view as to the length of time the work will take. Once the fee has been agreed, it should be confirmed to the barrister so that there can be no misunderstandings.
- If a solicitor asks for an indication of fees prior to sending papers, it is usually best for the clerk to ask the solicitor how long he/she thinks it is likely to take and to base any preliminary estimate on that information. It should always be made clear that this will need to be confirmed once the papers have been received and reviewed by the barrister.
- Fees sometimes cannot be based on time spent as there may well be a “price for the job” either because of the source of the work, the value of the claim, or because it is a “loss leader” to secure that case or future work. It is helpful always to explain the rationale for the fee level if asked. If the reason is a one off, then obviously this should be explained at the outset.
- If it is proposed to take on a new case which will involve a significant amount of work at a rate below a barrister’s usual hourly rate it is good practice for the clerk to discuss the pros and cons with the member of chambers before committing them to the case.
- Once a capped or fixed fee has been agreed it will be almost impossible for a higher fee to be charged unless the scope of the work has changed significantly and this is brought to the solicitor’s attention as soon as it becomes apparent. Solicitors often pass fee estimates on to their clients and will be very reluctant to go back to them to explain why the fee claimed is higher unless there is very good reason. It can often damage the relationship with the solicitor if estimates are regularly exceeded without an obvious justification
Adrian Vincent, the Bar Council’s Head of Fees and Remuneration adds a note of caution:
“These guidelines will work well in a set where there are good lines of communication between barrister and clerk. I particularly like the fact that Carolyn recommends that the barrister be consulted before fees are finalised where there is anything out of the ordinary in the fee rate proposed. That said, the Bar Council does receive reports from junior barristers in sets which appear not to behave as ethically as they should. Examples are given where members of the junior Bar are exploited, for the benefit of more senior members of chambers. A young junior may, for example, be booked to do a preliminary piece of work for little or no fee, when the case itself will go to someone more senior. Or clerks will fail to chase fees for a junior, for fear that the instructing solicitor will decide to take more lucrative work elsewhere. This can cause hardship. If this should happen to you, you might find it helpful to call the Bar Council’s Ethical Enquiries/Remuneration Enquiry Service (http://www.barcouncil.org.uk/supporting-the-bar/ethical-enquiries-service/, Ethics@BarCouncil.org.uk, tel. 0207 611 1307).
“A protocol for the payment of fees in Magistrates’ Courts was issued by the Bar Council in 2008 http://www.barcouncil.org.uk/media/10196/remmc2.pdf. The BSB Handbook references in it are now out of date (it is no longer the responsibility of the Head of Chambers to ensure fair distribution of work: it is the responsibility of all members of chambers (rC110.3.i). That apart, the guidance remains valid. The protocol is at http://www.barcouncil.org.uk/media/10193/remmc1.pdf“