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."