CBA Monday Message 24.09.18

Chair’s Update:
Chris Henley QC

AGFS CONSULTATION

On Friday the MoJ published further documentation as part of the current consultation on AGFS, and announced that the consultation period would be extended for a further two weeks to 12th October 2018. Bar leaders were notified of this by an e-mail at 20:28 the night before. I responded that evening expressing profound unhappiness. The delay has been caused by the MoJ’s previous refusal to share publicly their data. The responsibility is theirs but the consequences are visited on us.

It will be recalled that Angela Rafferty QC and Andrew Walker QC (then CBA Chair and current Bar Chair respectively) met the Lord Chancellor on 23rd May 2018. This was when the offer of a further ‘£15m’ was made. No one in the room believed that come October the new enhanced fees would not be in place.

It is a serious problem that, having now released the modelling data, the fee increases being consulted upon would have only delivered an £8.6m increase to the 2017/18 budget. This is not good enough. Something significant will need to happen to make good on the promises made to us in May, which resulted in the suspension of the action.

The consultation timetable has repeatedly changed; first it was to be mid July, then we were told mid August. It was finally launched on 31st August. A four-week consultation period has become six weeks. Thursday night’s e-mail from the MoJ said that they were now aiming for a December commencement date, but that the process is unpredictable.

The delays are completely unacceptable. Any remaining trust is hanging by a fraying thread. Every week that passes saves the MoJ money, and costs us. This has not escaped us, and will not have escaped them. We know of no legal reason why the new fees cannot be backdated. We are waiting to be shown any legal advice, if it exists, that would prevent this.

The ‘new’ data should have been published a long time ago, certainly at the time the consultation was opened on 31st August. We had asked repeatedly for greater transparency, but were told that this data was confidential and couldn’t be shared publicly: ‘Data protection issues’. The simple step of applying anonymised numbers to the fees, to replace the advocate’s unique number or name has solved the problem. It always would have done. But we need to be sure that the data is reliable. I have asked for the anonymised number that relates to me, so that I can confirm the fee information is accurate. Others may wish to do the same. I am meeting a senior civil servant today to discuss these issues, and Bar Leaders have a further meeting on Wednesday.

Again, can I urge you to respond to the consultation in large numbers. The MoJ’s response to the consultation will determine what happens next.

BILLING ISSUES

The culture within the LAA continues to cause us all serious problems, which wastes huge amounts of our time, and surely theirs, and impacts on our cashflows and personal health. So many basic errors are made in assessing our bills. Far too often the LAA fails to apply the regulations properly or to follow their own guidance. One clerk tells me that his chambers makes successful challenges to 60% of their bills. I don’t know whether the explanation is poor training, or an institutional mindset. Many practitioners, unsurprisingly, believe the latter. The scale of the problem is completely unacceptable. Those at the top of the LAA need to show more determined leadership to address the failings.

Refreshers are still not being paid when they should be, for example. The position is not complicated. Once a trial has started if the case is listed part heard and counsel attends a refresher is payable. This applies if a juror or even if the Judge is sick, or a witness is unavailable and the court has to adjourn after a few minutes’ discussion. The regulations and the guidance could not be more clear on this. Costs Masters agree. TNPs are for cases where the trial does not commence in the first place. I know of a recent murder trial where after six days the Judge acceded to a prosecution request to discharge the jury and order a fresh trial, because overnight a further suspect had been arrested and charged. The new defendant will be joined and the new trial will take place in March. The LAA’s assessment is that the trial has been adjourned part heard! This will eventually be put right but what a waste of time. As fees have fallen we need, at the very least, to be paid what we are entitled to. We are in the process of setting up regular meetings with the LAA to address these issues. The CBA is here to advise those who reach the end of their tether on these issues. If clerks have views on particular problems, particularly under the new fee structure, please get in touch on [email protected].

WORKING CONDITIONS

It’s not just about money. Working conditions also impact on our wellbeing and drive young practitioners out of the profession. It doesn’t help when a Judge issues a fiat that any PTPH not immediately ready will not be put back until later in the list but will be summarily removed from that day’s list altogether, without any discussion. How quickly some forget the reality of practice, and disregard the personal and professional consequences for us of such behaviour. We should be in this together; Bar and bench. Our goodwill keeps the system going. We miss important events in our personal lives, very rarely take days off through illness, we cancel holidays, often let our children down when young, all because of our professional commitment, and the inflexibility of some court lists. The sacrifices can be significant, and the rewards often modest. There needs to be a quid pro quo. Such unreasonable behaviour is thankfully a minority pursuit. We will be raising this latest example at the appropriate level.

PRO BONO

Last week together with Abigail Bright, of Doughty Street Chambers, I have been representing the family of a man who died in prison, at the inquest into the circumstances. It was his first prison sentence. This was an Article 2 Inquest with a jury. With better care the death was probably preventable. Abigail and I agreed to act pro bono. Generally, there is no legal aid for the deceased’s family to be represented at an inquest. The reason I am telling you this is that it exemplifies two important points. Whilst there was no public funding for the deceased’s family, the MoJ which is ultimately responsible for the prison had instructed counsel to protect their interests, the Health Authority responsible for the provision of healthcare services at the prison had legal representation, the duty GP had counsel to protect their position, the prison officers’ association had instructed counsel. But as legal aid is pared back, even more aggressively in areas of social welfare law than in crime, under the funding rules the people most affected by this tragic death would, uniquely amongst the interested parties, have been left without an effective legal voice. That’s the first point. The second is that so many legal aid lawyers, both solicitors and barristers, work quietly on a pro bono basis all the time. We do mind the justice gap. Politicians need to step up.

A consultation on precisely this issue ‘Review of legal aid for inquests’ has recently taken place; the closing date was 31st August 2018. Its conclusions will be interesting.

TREASURER

Finally, but importantly, I would like to thank Gillian Jones QC who has stepped down from the role of Treasurer and to introduce Peter FitzGerald, a member of the employed bar working at Peters and Peters, who has agreed to take over for the next few months until a fresh election for the post can be held in the new year. Gilly has been an amazing member of the team; a rock to Angela over the past year and a brilliant Treasurer. She will be missed (and still occasionally bothered by me for advice).  Thank you Gilly.

 

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