I have now read the entire consultation on fees. I have cogitated and calculated. I have some views to express (which is a good job or else the starting of a blog would have been a pretty pointless exercise). My thoughts have been concerning the figures in the boxes and the execution of parts of the scheme. In this blog I am going to deal with problem under which those shaping the scheme have had to labour – there is no new money. Fees that were set for cases many moons ago, fees that have been subsequently reduced, are still being paid at the same, reduced rate.
It is also undoubtedly the case that the current AGFS remunerates some cases in an inadequate manner. There are times when you do a case and then see the bill. You do a double take. Surely there has been some mistake in the calculation of the fee? Surely all that work and worry must be worth more than this?
There are those at the Bar who are canny and dodge the under-paying cases. There are those of us who think “never again”, right up to the next time you take on a similar case. The long and the short of it is that there are winners and losers when it comes to a fee scheme that pays by the piece rather than by the work put into the piece.
When it comes to designing a scheme that is based on the same size pot, there are always going to be cases where payment goes down if money is shifted to other parts of the scheme. It is impossible to do it otherwise.
In my opinion it is the inescapable truth that Silks are not paid enough for murders under the AGFS. I find it impossible to argue otherwise. It is right that these fees should be increased. The increase in these fees should come from extra money being paid into the scheme. The scheme under current consideration requires that the money comes from elsewhere within the scheme. And that means fees for other cases are going to be decreased.
And here you have the point of tension. No one likes the idea of a pay cut. Those that see themselves as being the losers in this equation are going to cry foul. That is entirely understandable.
I am not a Silk. I have never applied for Silk. I have no intention to apply for Silk in the next application round. I am a junior that does the occasional drugs conspiracy with a decent page count. I do some fraud type work. So I am going to be in a position where future fees may be reduced. I also do a fair amount of sex cases so I could see some fees increase. And no matter what it means for me, I can see that Silks are not properly remunerated for some murders at the present time.
The information that accompanies the consultation indicates that the Silks’ slice of the pie is going to increase by 10%. This does not mean every Silk in the land is going to get a 10% pay increase. This does not mean that every Silk’s fee in every case is going to go up. It does not mean that there are no situations where a Silk is going to end up being paid less. It also means that, in some cases, a Silk is going to end up getting paid more than 10% extra on the current fee. But this 10% thing strikes me as a bit of public relations disaster for the new scheme. It makes it very difficult to sell to the rank and file. That 10% is coming from somewhere and it is coming from the fees paid to the junior bar. So I know that a fee increase for Silks is the right thing to happen. It is just that there is not a spoonful of sugar to help the medicine go down.
It may have been easier if just a little bit of the extra money for Silks (produced by a formula explained within the consultation) had just been moderated slightly and the extra money put back into the fees that are being most significantly reduced (paper heavy fraud and drugs). It would have sugared the pill if it was the case that the consultation told us that the formula had worked out that the Silks should have been put up by more but that this figure had been adjusted due to the fact that the fees were being cut elsewhere and that the reduction would therefore be less.
Of course this is a consultation. I am entitled to make that point. I am not arguing that Silks should not have some of their fees increased. I am arguing that, when the money in the pot is too little to begin with, such adjustments as are necessary should be dealt with not only by way of formula but also by way of sensitivities.
I am not convinced that one can argue against the removal of page counts per se. It is a clumsy tool by which the seriousness of a case or the work involved is calculated. It worked better when it was first introduced, when it was used to differentiate between cases within a relatively small compass. But as page counts got bigger and the page count payments got extended to thousands rather than hundreds of pages it became less of an accurate measure of a case and more of a lottery in which you hoped for lots of pages on the PPE and a case summary that spoke of only one witness naming your client.
If you are to argue about the numbers in the boxes, it cannot just be by the slogan “save our PPE”. It cannot simply be by the cry that this time round your practice profile is going to mean you are in the column of fees being reduced. If any one wants to make the case why the figures in the boxes are wrong then I am more than happy to host any blogs on the subject. But I also repeat this request – those are argue that the figures in the boxes are right need to release more information to us. The Bar Council, the Circuits and the CBA need to provide us with information. Quickly.
I will post another blog soon about one or two areas of detail in the proposed scheme.
A view from the North 
I have already said in print (hosted by View From the North) that the proposals to increase the ‘silk uplift’ in the pay tables to 100% is wrong. There is no economic necessity for it in supply and demand terms. There are more silks than there is work for them, and there is no shortage of good quality applicants for silk – barristers and solicitors who are obviously willing to work at the rates currently on offer. There would still be a queue of applicants for silk if the uplift were 25% or even nil. The argument “I (or they) deserve to be paid more for doing murders” is not an economic argument. And as Jaime points out, if the extra money for silks is of necessity coming from juniors, it is doubly wrong, and, as Jaime observes, a PR disaster. The proposals, as currently structured, would not remove the £13,000pa junior, but they may well herald the return of the £1m silk.
The other serious flaw in the proposals, as a number of commentators have pointed out, the almost complete removal of PPE as a proxy for complexity. An example from my own practice: In 2016, I did an 18-day multi-million pound fraud trial with 10,050 pages of prosecution evidence. My fee was £20,000. Under the new proposals, it would be reduced to £13,000. Now I acknowledge that many people would say “£13,000 for 18 days work doesn’t sound bad to me”, but anyone who has done such a case will see the flaw in that. If the point of the new proposals is to encourage juniors to aspire to the better work, an example such as this will not further that aim, insofar as it really is one. PPE might be an imperfect proxy for the amount of work needed to be done on a case, but it is better than no proxy at all.
Ian West
Fountain Chambers
Middlesbrough.
follow my musings on Twitter: @ianswest
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Ian.
Your first paragraph is almost verbatim what Grayling had to say in justifying the proposed reductions in VHCC work. “There are people there who are prepared to do the work at those rates, so what’s wrong with the rates?”
May I address the elephant in this particular room? Readers who attended the MoJ roadshows will remember Liz Gibby firmly announcing that PCT was a done deal. Any negotiations would only be about HOW it was implemented, not IF it was implemented at all. Similarly we were told that the VHCC cuts WOULD go through, they were not negotiable. Neither happened in the end, because the profession united to fight, And we won. So can we please stop ignoring the elephant. WHY SHOULD THIS BE COST NEUTRAL?
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I absolutely agree that a review procedure MUST be built into the architecture. With the new MC allocation guidelines, there is every prospect of a (yet further – they’re already on the way down) drop in Crown Court volumes, so in years to come, there is likely to be a saving over 2014-15 spend. We must ensure that any such saving is not gobbled up by the Ministry, but is made available for system uprating.
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The PPE is an important feature. The argument seems to be that refreshers for long trials make up for it. That argument does not hold water in my view. All the more so when one thinks of cracked trials. I had a case crack about 10 years ago. Because of the page count I received £9,000. Currently I would receive around £3,000. In the future about £1,000.
I for one will be avoiding big cases like the plague, and by big I mean page heavy. I already do so when prosecuting so at least this change will provide that element of parity between the two sides.
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The real problem is that this proposed scheme is based on a zero percent increase in the pot from which these fees are paid. That means, as has already been pointed out, that a fee rise in one part of the scheme can only be afforded by cuts elsewhere. At some point we need to grapple with the reality that a scheme that was first devised more than 20 years ago has never been properly revised. A decade ago a revised version of the scheme was drafted after a review by Lord Carter who was not a lawyer. That too involved moving money from one pot to another within the same “costs envelope” to use the nonsense language so beloved of administrators.
How much longer are we proposing to continue with this fiction? Despite the fact the Bar Council’s proposed scheme, as submitted to the MoJ as long ago as October 2015, included the need for a mechanism to ensure there was a review of fees in the future, the consultation document from the MoJ has conveniently omitted any mention of a review mechanism. That failure, an obvious serious deficiency in the proposed scheme, has not prevented the entire leadership of the Bar so far as it relates to criminal work from enthusiastically endorsing the proposed scheme without even any caveats such as the absence of any review mechanism.
Of course it is a laudable exercise to construct a scheme that gives juniors something to aspire to and ensure that as they become more experienced and do more serious work they get better paid for it but surely it must have occurred to our leadership that that meant they could only endorse a scheme that included more money. The failure to do that has already led to comments such as by Jamie and Ian about the essential unfairness of taking from the already poorly paid juniors and giving a bit more to the silks so that the juniors will have something to aspire to. A PR disaster indeed.
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I can’t agree that the new scheme does in fact reward doing more serious work as the top paid bands subdivide a tiny volume of cases whilst leaving virtually every case actually encounted in practice between pupillage and 10 years call plus in the bottom band.
Take drugs cases. The bottom band covers everything from simple possession of a rock of crack cocaine (starting point sentence a fine) to conspiracy to supply 3.5 kilos (starting point sentence 15 years).
The same problem applies to dishonesty offences where there is no difference between shoplifting a mars bar (starting point sentence a fine) and a care home worker accused of defrauding numerous vulnerable elderly people out of their life savings of £99,000 (starting point sentence of 5 years).
Money laundering (previously Group B) is also lumped in with dishonesty offences and there is therefore no difference between the low value theft and a complex conspiracy. As PPE goes there becomes literally no difference in fees between cases of vastly different seriousness and complexity.
The new system does get away from the current oddity that there is no difference between touching a 12 year old’s bottom and murdering them (Groups J and A currently paying the same fee) but introduces far more new oddities.
As the Case Fees and refreshers are also reduced, the payment of £100 per mention becomes meaningless. All cases involve a PTPH but BCM has reduced the number of mentions. Loping off money from the brief fee to pay for mentions which do not occur simply reduces the fee paid for the case. Increasing the fee for refreshers beyond Day 40 is also largely meaningless as this affects only a handful of cases, particularly due to BCM.
The Committal for Sentence Fee is also not addressed. As Full Credit is now being given for a plea in the Magistrates, the current problem of every plea (except indictable only offences) paying exactly the same fee of £130 fixed remains. Again this does not reward career progression as the barrister dealing with a serious drugs, dishonesty, S20 GBH or counterfeit currency case receives the same fee as they did as a pupil.
The system seems to have been designed by only looking at the top 1 or 2 percent of cases, spending time dividing these up and then lumping all other cases in one low paying band. I do agree that PPE should go. But the proposal needs the numbers in the boxes re-written to actually address the very different types of cases which all currently fall in the “everything that silks don’t do” box.
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