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Tuesday, 5 February 2008

It's All the Fault of the Bar

The LSC has pronounced on the new contracts. It boils down to this: 2,300 barristers were offered contracts. 130 signed them - about 6%.

This, however, is not the fault of the LSC and nor does it reflect the terms of the contract being unacceptable. Rather it is the fault of the Bar. The Bar tendered for the contract at the agreed rates and the failure to sign now is a lack of good faith.

This argument suffers from two flaws. Firstly it is untrue. Secondly it is stupid.

It is untrue because I did not know what the rate would be. I was asked if I would allow my name to go forward to be considered for an offer. To do so would potentially assist my solicitors and my Chambers. Not to do so would be to close the door on the work forever. I agreed to allow my name to be added to the tender. At no stage was I told that I would have to do the work for any particular price, still less on any particular terms.

It is stupid because the sight of the Legal Services Commission (stressing the word 'Legal' here) suggesting that pre-contractual negotiations are in any way binding almost beggars belief. They offered me a contract. I looked at the terms and didn't like them. So I said no. They did not change the terms - instead they offered vague and non-enforceable 'assurances' that the contract didn't quite mean what it said. I said 'I don't believe you, so it's still no'. So there is no agreement. What there is, is a whinge that I should have signed before they told me what I was signing.

The lack of good faith inherent in that approach is a disgrace. No government body should attempt to mislead those with whom it works in such a manner.

But I take heart from the fact that the Press Release (which I gather was the way in which the matter was communicated to the Bar Council - what grace and elegance under pressure) is only the public face. Inside the LSC there will be a wailing and a gnashing of teeth. They will want to know how such misjudgments were made. The public declaration that the names of those who signed would be published (still a blank on the LSC website); the confidence that the Bar could be bullied into signing; the threatening letters sent to the Chairman of the Bar; the overweening confidence. I suspect the government might want to know precisely how they have been dropped in it. I shall endeavour to keep you informed.

Meanwhile the LSC press on without a panel. The rates remain the same but there is no longer any need to commit oneself to the panel. So I can take a case I am offered in Leeds and refuse one in Preston, which seems to me better than the previous position. What's more I can refuse a case because the LSC aren't willing to give me the hours I think I need to prepare it properly. I can say no unless I am paid travel and expenses.

I gather I am to be offered another chance to enter into the deal on less adavantageous terms. That is obviously terribly kind and I am grateful. But I don't think I shall change my mind.

As to the suggestion that the Bar has engaged in activity not in the public interest: if they have evidence that the Bar pressured people not to sign then they should put it in the public domain. If they only have anonymous gossip and wishful thinking they should shut up. Issuing a press release that contains vague hints of unfairness is the sort of moaning a child does until its parents explain that sometimes life is unfair.

Right. I feel better now...


Nearly Legal said...

My congratulations to the criminal Bar on this. I think the LSC is entering a phase of persecution delusion, detached from reality and assuming that everyone is conspiring to get them.

We are, of course, out to stop the most ridiculous of their proposals, but having steam-rollered, bullied and stonewalled their way through the objections to the reforms so far, I suspect the LSC had wholly convinced itself of the rightness of its project and didn't believe anyone would actually get in the way. Now, a JR and Court of Appeal judgment against them and an absent VHCC panel later, the LSC can't cope with the actuality.

By the way, an LSC insider has privately indicated to me that internally there is chaos at just about all levels at present, from the most basic functioning of the system to management and policy. Not that this will come as a surprise, I know.

Anonymous said...

Criminal Silk conducting a murder trial at the Old Bailey: £476 per day.

Civil Second Six Pupil conducting a fast-track RTA in a county court: £690 per day.


Anon2 said...

Depending on the value of the claim - but point taken.

Lost London Law Student said...

Perhaps I should aim to do better in my tort law studies this year.

£649 a day doesnt sound too bad at all. ;)

Simon Myerson said...

Yes, the lesson is do civil (although see the latest post for the other side of the coin).
As you know, I am keen to see the Bar do all sorts of work rather than specialise in just one. This is, I know, a losing battle and it will mean that we soon have one well paid profession and one reasonably remunerated one. And, I fear, never the twain shall meet.

Anonymous said...

More grace under pressure from Tim Dutton as he responds to Richard Collins and Jack Straw viz proposed amendments to VHCC funding - and picks up the point made above re fees on fast track cases.