Tag Archives: graduated fee

To the Manor Born

I have not written this blog. This comes from Ian West from the frozen North. I have known Ian for many years due to our shared “interest” in remuneration issues. He has always been committed to achieving fair and appropriate remuneration. 

The views expressed in this piece are Ian’s views. His Twitter name is at the end of this blog so feel free to direct any comments his way! As they are not my views I should point out that I do not share the same view as Ian over some of the issues he raises. He has, however, asked me to host this blog and I am only too happy to do so. Remuneration and the mechanisms of remuneration are important issues. As ever there is a need for wide debate. 

The new Advocates’ Graduated Fee Scheme: To the Manor Born?
This week, the Ministry of Justice (MoJ) published its consultation paper ‘Reforming the Advocates Graduated Fee Scheme’. The scheme has been being worked on by representatives of the Bar Council, the CBA, and (until they walked out in protest) the Law Society with officials from the MoJ for many months. Here is the link to the consultation paper: https://consult.justice.gov.uk/digital-communications/reforming-the-advocates-graduated-fee-scheme/ If you are a criminal barrister or solicitor advocate you need to read it and respond. What follows are my personal, and, of necessity, preliminary views.

The structure of the scheme, in summary, is to largely do away with the proxies of pages of prosecution evidence (PPE) and prosecution witnesses (PW) as components of the graduated fee, and instead to attempt to reflect the work needed to be done on a case by replacing the current 11 offence codes, A – K, with 16 new categories, 1 (homicide) to 15 (regulatory offences) plus a ‘residual’ category 16 (‘standard cases’). Categories 1 – 15 would have within them, sub-categories to reflect different levels of complexity/seriousness within the offence type. Thus, there would be 42 separate levels of ‘basic fee’. In addition, there would be separate fees for up to six ancilliary hearings – PTPH, sentence, etc – and the second day of trial would be paid, unlike at present. So far so good. The architecture will, I am sure, get high marks from all advocates. The scheme is said to be ‘cost neutral’ from a baseline of 2014-15 spend, so the objective is said to be to make advocates’ pay ‘fairer’. There is no mechanism for review and upgrading of fees, but that flaw is not the main object of this piece.
The devil is in the detail – the ‘numbers in the boxes’. Here, I regret to say, the scheme fails the vast majority of criminal advocates – in fact, all but that 10% of them who are QCs. The silks will get a pay rise – a substantial one – whilst juniors at all levels will struggle to maintain parity, and most will suffer (yet another) pay cut. The MoJ has done some worked examples in Annex 3 which show this, but you will probably have done some from your own practice. Two questions, therefore. How, and Why?
The ‘How’ is simple – see the ‘indicative fee table’ in Annex 2. Every fee for a QC – basic and refresher – is twice that of a junior doing the same case, whether that junior is doing the case him or herself, or is being led by the QC – so a 100% ‘silk uplift’. This is, for QCs, a marked improvement on the tables in the current AGFS, where the silk uplift is either 75% or 80%, depending on the disposal – trial/plea/crack. And, of course, the higher basic and refresher fees are paid in the ‘top’ categories, such as 1 (homicide) and 2 (terrorism) i.e. the cases that QCs generally do. So, for silks, ‘double-bubble’!
Why? Juniors may well ask. The cynical ones, including the 90% of juniors who will never be QCs, may answer: because the scheme was, by and large, negotiated on behalf of the bar by… wait for it, QCs. So what have the bar’s leaders said about the scheme? Andrew Langdon, Bar Chair (and criminal silk) said: “These proposals… go a considerable way towards restoring career progression…” The Circuit Leaders, and former leaders, issued a statement saying that the scheme “..promotes quality in advocacy and encourages talented young people to practice in criminal law.” 
This sounds to some juniors (and the Law Society, which has attacked the proposals) like special pleading – “We QCs need to be paid more, and you less, in order to encourage you to become QCs yourselves.” But are young barristers going to be attracted into criminal work which for most will be a diet of ‘standard cases’ by the prospect of ‘jam tomorrow’ – the chance that they might one day reach the Elysian fields of silk? One suspects not. So is it all bad news for juniors? No, some cases will pay better, and the separate fee for the second day of trials, and ancillary hearings is a welcome step. 
But the question remains why should the scheme, which presents the opportunity to redistribute the legal aid ‘pot’ fairly to all criminal advocates, be skewed towards silks? Simple economics would say that it does not. Is there a shortage of silks? No – the relative scarcity of silk certificates means that there are more silks than there is work for some of them. Is there a shortage of applicants for silk? No – the competition is fierce. The fact is, that on a supply and demand analysis – which a conservative government might find compelling – there is absolutely no justification for a silk uplift of anywhere near the 100% proposed. If it were reduced to 25%, or even nil, and the higher pay would simply attach to the seriousness of the case, and not the category of advocate, there would still be more criminal silks than we need, and good and busy juniors would still apply for silk to do the better work, and for the lifestyle change. And, of course, it would allow the money to be spread more equitably for everyone.
So my verdict on the scheme is that the scheme is, like the curate’s egg, good in parts. But it is, as the fees tables presently stand, seriously unfair to juniors, i.e. the vast majority of the bar, and unduly, and unnecessarily, favourable to QCs. I have no doubt that my views, thus expressed, will attract the accusation that I am being divisive. But who is doing the division – the ones who designed the scheme and feathered their own nests, or the ones who complain about it? 
Ian West, Fountain Chambers, Middlesbrough.

Follow me on Twitter: @ianswest.

Another Day, Another Dollar

I write this as I am on a train on the way to court. I have forgotten my headphones so, unless the whole carriage feels like sharing in the experience, no Paddington Bear for me. Which, if this is the first blog of mine you have read, may seem like an odd statement. You will have to forgive me. I am over tired. 

The reason I am over tired? I have only had five hours sleep. You see I was up last night until 1.20 am drafting a skeleton argument for today. Any of you legal types reading this will say “Par for the course, get on with it”. And of course it is. But let me write a little more about the context and potential consequence. 

Two and half months ago I travelled to court for the same trial I am engaged in now. On the first day there was a problem which was beyond the control of anyone and meant the trial could not start that day. We all spent four days that week turning up at court to see if the difficulty could be overcome. Unfortunately it could not and the trial was adjourned. 

Those familiar with the payment structure will realise that was financially a bit of a disaster. Four days and the trial did not start. The payments for those days will probably, just, cover my train ticket.

For good reason the Judge had to force the case into the list. The trial is scheduled for about four weeks. The judge tried very hard to accommodate the availability of the advocates. Four out of six of us originally there have made it back for the second trial date. I have had to return other work to be here. 

We are now Day Three of the new trial. We have yet to swear a jury. The problems that beset the trial last time have led to various legal arguments. As things developed on the first day the Judge needed assistance in the form of skeleton arguments about matters that had only arisen that day. So on the first evening of the trial I got home at 7 pm and worked until 11pm.

The next day there were more developments. Hence the fact that I was working on the train on my return journey, walked in through the door at home, kissed the dog and tickled Mrs VFTN behind the ear, searched for a mallet (yes, you have read that correctly, and no, don’t ask), got changed and headed into chambers because I needed something from there for today. Then back home for dinner and then worked until the wee small hours. 

Of course the keen eyed amongst you will have noticed we have not sworn a jury. We may not. There is a prospect the trial could adjourn again. For the uninitiated amongst you, this is another financial disaster. The bulk of the fee is only due once a jury is sworn or the case otherwise finished. I still do not know when that is going to happen or even if I will be there when it does. 

If I am not the barrister doing the case at that point of time? Well leaving aside the hours I have spent otherwise preparing this case, with the seven days at court and nine hours of work in the evening in the last two nights alone the best I could hope for is that I will break even on my travel and my chambers expenses. 

This is not a moan about the level of remuneration. This is not a moan about working at night. Many people have to work hard. I knew this was one aspect of the career I embarked upon. I am not proclaiming myself the doer of heroic deeds. I am just doing my job and all it entails. 

Unfortunately my job entails a crazy system of remuneration whereby we all gamble on a daily basis as to whether and what we will get paid. The circumstances that lead to appropriate remuneration rely upon a series of events entirely beyond our control. It is like inviting a plumber to come fix a leak on the promise of payment should England win the 2018 World Cup. 

The graduated fee scheme was meant to be a system predicated on swings and roundabouts. On days like these (which, let’s face it, is most days) it feels like a helter skelter. A helter skelter with right angles instead of curves. And razor blades embedded in the side. And a six foot drop when you shoot out of the mouth of the slide. 

Oh well. As they say, “Another Day, Another Dollar.” Or not, as the case may be.