22 April 2018

Current guidance on returning instructions “the most appropriate way of protecting clients’ interests”

24 October 2014

The Bar Standards Board (BSB) agreed last night at its monthly board meeting on 23 October 2014 that there is to be no new guidance on situations where barristers can, or are obliged to, withdraw their services - known as "returning instructions". The BSB Handbook includes detailed rules on returning instructions. These remain unchanged and were not part of the recent consultation.

The Board was previously concerned about whether guidance needed to be updated to better describe how barristers might decide whether to return instructions in instances where a third party funder (not the client) sought to change the barrister's fees after their instructions had been accepted. These concerns led to the BSB issuing a full and open consultation on possible changes to this guidance.

In addition to this, the BSB also reviewed the availability of evidence on how barristers used the current guidance - at a time when the government was reviewing legal aid funding for Very High Cost Cases (VHCC). This was to establish where there was a risk that instructions might have been returned in circumstances that were seriously detrimental to clients and the justice system.

Following this review, it was decided that existing guidance was sufficient to be applied by the Bar in a way that properly protected the interests of clients in a complex contractual situation.

However, the Board reaffirmed its opinion that it was right for the regulator to seek to identify and assess any risks of harm to the public in such situations. The regulator will continue to consider issuing further guidance, if evidence of risk to the regulatory objectives emerges.

Director General of the Bar Standards Board, Dr Vanessa Davies, said: "We appreciate that this is a sensitive issue for the Bar, when the rapid rate of change is making the legal services market a difficult place for some. But as a regulator we have a duty to protect the public and are striving to pursue the most transparent and proportionate approach we can. It was absolutely appropriate and necessary for us to consider the risks to clients, and whether the current guidance properly meets clients' needs.

"In analysing the issue, we had to consider closely the interests of consumers, access to representation and the impact on the administration of justice. We also had to bear in mind how the promotion of an independent, strong, and diverse profession might be affected were barristers to be placed in a situation in which they had to work for less than they had originally agreed. Ultimately, we are content that the evidence of risk to the public is not sufficient to require further regulatory action at this time."

The consultation on changes to the guidance on returning instructions opened 27 March and closed on 25 April 2014. The BSB received 240 responses - almost all of which were from members of the Bar or organisations representing them, with a small number of others working in the legal services market.

The consultation response is available here.

ENDS

Notes to editors

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