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.