25 November 2013

BSB acts to clarify regulatory position over Very High Cost Cases (VHCCs)

The Bar Standards Board has moved to correct a regulatory anomaly relating to Very High Cost Cases (VHCCs) and the Cab Rank rule (CRR).
The move was necessary because the Ministry of Justice has laid down secondary legislation which could mean that the fees for VHCCs would for the first time be subject to a provision in the Cab Rank rule "deeming" them to be reasonable fees.
The Cab Rank rule was not designed to define acceptable remuneration, it exists to ensure that anyone can access a barrister no matter how unpalatable the case.  This principle is central to the interests of clients and the proper administration of justice.  It is in the public interest that the BSB has moved quickly to ensure that this crucial principle was not inadvertently undermined by a small piece of the Code taking on a temporary new meaning.  

The unintended consequence of the secondary legislation would have meant that fees for VHCCs would be subject to the deeming provision in the CRR for a period of a month.
In the current Code of Conduct  the "deeming provision" in rule 604 - which was introduced before the BSB came into being and when the Bar Council as a representative body negotiated legal aid fees -  was never intended to apply to VHCCs. The fees in such cases were agreed by way of contract.  The new BSB Handbook (which comes into force on 6 January 2014) will leave it to individual barristers to judge whether they can reasonably decline to accept instructions in legally aided work in all the circumstances.  The concept of "deeming" has been removed altogether from the new Handbook. 
The policy for the changes that will come in from January was decided by the BSB in 2012 and approved by the Legal Services Board in July 2013.  Individual barristers  will have to judge for themselves whether the fee offered is a proper fee, whether the work is legally aided or privately funded, and if they reasonably conclude that it is not, objectively, a proper fee the CRR will not oblige them to take the work.  
To avoid confusion for the public the BSB has issued a detailed policy statement , effective immediately.
Director of the Bar Standards Board Dr Vanessa Davies said: "As a regulator, it is not for us to have a view about how much barristers should be paid which is why the deeming provision was removed from the new Code altogether. Ensuring consistency of our regulatory arrangements, which have been carefully drafted and consulted on, protects the consumer as well as the barrister. It's confusing for a rule to change its meaning for one month or so, so we have acted to ensure consistency and clarity about what the public can expect from the Bar."