As part of his public pronouncements concerning his reforms of Legal Aid our Lord Chancellor has spoken of how he is acutely aware of the problems surrounding cash flow for lawyers. He is going to do something about it for us.
Now I have been at the Bar for twenty years. I have seen many changes in fees. I recall that when the Graduated Fee Scheme was first introduced it was acknowledged to be a system of “swings and roundabouts”. There were some things that were improvements, there were some things that were diminished. One of the antidotes to reduced fees was the fact that a simple system predicated on certain known factors meant speed of payment. Ten days was the target.
Fees were processed locally at the court centre where the case had been heard. If there was a problem with a bill then one of the court staff could speak to your clerk. If you had a query you could easily discover the person with responsibility for processing the payment. And do you know what? It worked. The vast majority of payments came through quickly and accurately. The old saying goes “if it ain’t broke, don’t fix it”, unless you are the Ministry of Justice.
So in February 2011 the Legal Services Commission took over the processing of graduated fee applications. Overnight the payment regime went from payment within days to payments within months. That left a hole in many barristers’ cash flow from which they never properly recovered. I know of one junior member of the Bar who had saved their deposit for a house. The money stopped coming in. They had to live off those savings to fill the gap. I know that they now have a debt owed to them which corresponds to their savings. But no house.
So we had to get used to this new and improved system. Things did get a tad better. Not by much. The obvious thing to do was to scrap the LSC and replace it with the Legal Aid Agency in April 2013. For no discernible reason millions, yes that is right, millions of pounds of taxpayers’ money was spent on this change.
So how is the system presided over by The Lord Chancellor operating now? Well let me illustrate it to you with my recent experience. I was instructed in a case in April 2012. It was a multi-million pound drug importation. I represented the principal defendant as the leading Junior, he being the only defendant to require two counsel. My client was returned to this country pursuant to a European Arrest Warrant. He was therefore joined to the proceedings after the bulk of the defendants had appeared for Plea and Case Management. At that hearing a trial date had been set which envisaged my client being tried at the same time. I subsequently appeared for PCMH and we strived to be ready in time for that trial. That proved impossible as the defence did not have time to consider all the evidence by the trial date. Upon my application the trial was put back. In January 2013, in the months leading to the new trial date, the defendant entered acceptable guilty pleas. In due course his fellow defendants followed suit. The case concluded in July 2013.
I set out the chronology in some detail because it is important. There were seventeen court hearings. I had twenty-six conferences with the client. However this is not a moan about the paucity of the fee. It is the process of payment that I am concerned with here (the level of remuneration is a whole different blog).
My bill went off to the LAA. They have notified me of my payment within (just about) their target timescale. I could complain about the fact I have waited nearly two months for my money. After all the Government promote the Prompt Payment Code to ensure small businesses are paid quickly and properly. This implements the EU Directive which states the Government should pay its debts within 30 days (I wish) and that appropriate interest should be paid by the Government thereafter. Let us leave aside the fact that no interest is paid on counsel’s fees.
But the story about this fee concerns the fact that I put in my bill as a “cracked trial”. This is the fee for a case which pleads close to the trial date. The LAA are paying me a guilty plea fee. That is about half of the fee which is undeniably due. The reason why? The LAA could find no record of the trial date being fixed at my PCMH. Well they would not. Because it wasn’t. It was fixed before my client was in this country. And then refixed at a different hearing. In fact my case had been mentioned before the PCMH and everyone knew that it was intended to join our case to the trial date already fixed. So at my PCMH no mention was made of the trial.
Did the LAA look at any other hearing other than my PCMH to work out what happened? Remarkably I am told they cannot. Did they ring my ckerks and say “Look, we know he was instructed for over a year, and had twenty-six cons so it looks like he might have been preparing for trial but we just can’t work out when it was fixed. Can you let us know?” Did they do that? No. What they do is they pay me the least they can and tell me to appeal.
So the appeal will take a couple of months. I am virtually guaranteed to succeed. All I have to do is explain the position. I am so confident because I already know that my solicitor has been paid as a cracked trial. My clerks have already been told that it will be paid. Again I wait for money which is obviously owed to me. Without interest. A situation which could have been resolved by a phonecall.
The Lord Chancellor promises to improve cash flow. It does not take new schemes to do so. It does not take some scheme of interim payment. What he should do is recognise that the changes, the expensive changes, that have already happened have made the situation worse. What he should recognise is that we should and could be paid promptly. He should already preside over a system that works. He should ensure we are paid interest on every penny not paid expeditiously. So forgive me if I find his promises hollow.
Before there are sweeping changes to Legal Aid or Probation or Prisons the MoJ should try very very hard to get the basics right. Time and time again they fail. There used to be a question in interviews for Recorder in days gone by where the applicant was asked if they knew of anything that may embarrass The Lord Chancellor. Well in modern times we can be confident that he does not embarrass very easily.
The problems with the LAA are endemic. My example is just one of countless such issues. We are paid late. We are paid incorrectly. The LAA do not communicate. They seem not to care. Imagine if doctors went unpaid and, lets say, one in every two pay cheques were wrong. There would be calls for the Health Secretary to resign.
It should not be for the Secretary of State for Justice to suddenly look in to the question of cash flow. The problem is one of his Ministry’s making. There should be sweeping, fundamental changes. The payment system is not fit for purpose. It is shambolic and disgraceful. He should resign. He will not.