Incidentally, solicitors embroiled in the tender debacle may wish to join in the debate on the ilegal fora here.

If you are from a firm who has lost out in the tender process to a local firm who successfully bid for a large number of matter starts you should read this NOW and circulate it widely.

POSTSCRIPT:

Email from a colleague:

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Whilst a number of results have yet to be announced and large numbers of solicitors are likely to appeal decisions refusing them contracts, it seems highly likely that this green and pleasant land may be undergoing something of a desertification as far as access to justice is concerned…

(Thanks to Provincial Solicitor for reminding me that I needed to post on this topic)

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In another Times piece about social work ‘gone wrong’, it is reported that social workers tried to remove a child from his parents because of their vegan diet. I can’t really make sense of this report, because it appears to suggest that the parents had their public funding withdrawn on merits grounds, but public funding in care proceedings is not merits tested. I think that the answer is that the parents were pursuing some kind of Judicial Review against the Local Authority, which would be merits tested but they would have been entitled to legal representation as of right in relation to the main proceedings where the removal of their children was in issue.

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But just to demonstrate that this is only a different set of swings and roundabouts, there is a whole range of other work, which currently makes up the bread and butter income for many at the family bar (particularly at the junior end), that will be paid at appallingly low rates. So in private law children (contact, residence etc) the hearing fees start at £69.55, and for equivalent hearings in ancillary relief (money on divorce) precisely 65p more at £70.20 (who knows why?). This is a gross figure, before travel expenses, and including preparation and travel time. In real terms it amounts to probably £30 a day in your pocket (family barristers income comes almost exclusively from court work unlike solicitors who bill for the work they do back in the office). Remind me again why I trained for three years post graduation and incurred at £25,000 debt?

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In fairness, those fees increase where the hearing lasts more than an hour from the time the advocate was ordered to attend court. As long as an advocate is at court for an hour and a minute the fee will be approximately £100 higher. How well has this been thought through? At many courts local to me there are two relatively common listing practices which appear to have been overlooked by those who have apparently costed this meticulously and down to the last penny: block listing and directing the parties and their representatives to attend court for negotiation at least an hour before the hearing. I wonder what proportion of cases the LSC is banking on being disposed of in an hour or less for a mere £70 odd? If a court block lists say 10 cases for 10am on a Monday morning, at least 8 of them are inevitably going to end up being paid at the higher rate. None of us will want to be the unlucky advocate whose case goes in first out of the block list, and whoever draws the short straw they clearly can’t all be dealt with before an hour is out. I can see ushers up and down the country struggling to find something for the judge to do before 11am.

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And of course in a case where parties are ordered to attend an hour prior to the hearing for negotiation the lower fees will never apply.

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When you have a minimum fee to pay to chambers each month an income of £30 a day is just not viable, even if its offset by higher fees on some days. No doubt the notion is that an advocate can triple stack short hearings and make a reasonable amount in a day, but any advocate will tell you that there is no reliable way of knowing before you attend a hearing how long it will last. That is why cases are block listed – so that the court can juggle them around as they become ready to go before the judge. One is faced with the proposition either of taking several cases and running a distinct risk of compromising quality of service (or even a wasted costs order against counsel personally if she cannot manage all the work she has taken on) or of taking on simply one case and hoping the court will have overlisted (or perhaps simply happening to be in the loo or deep in negotiation when the usher calls the first case). Neither is satisfactory for advocate, for client, for the interests of justice. And it doesn’t sound to me like a system that reflects the work done or is anything other than arbitrary.

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Block listing and requiring the parties to get their neogitations done and dusted so a case is ready to go at the listed start time are both legitimate method used by the court service to manage their workload. There is a real tension here between the practices of Her Majesty’s Court Service which are designed to make the best use of limited judicial resources and court time, and the theory behind the new fee structure which is designed to save the LSC money.

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Sometimes I wonder how much has been spent by the LSC on this wretched consultation and fee revision process and think wistfully that it could have been spent on legal aid. And its on days like these that I despair that all these endless fee cuts achieve is to push a diminishing amount of money from one area to another in complicated ways that fail to save the public any money, reduce the value obtained for that money and put at risk the interests of justice.

Most importantly, for those of us with long standing obligations in our diaries to clients for whom we have acted throughout lengthy proceedings, we still have no idea what we can expect to be paid even though the changes come in within a matter of days. And what it hinges on is whether or not the ‘instructions’ were ‘received’ on or before 4 August 2009. What amounts to ‘instructions received’? A booking in a diary? For that is when counsel if professionally obligated and has to make her decision about whether or not to refuse work on the basis of inadequate fee. When counsel is retained as ‘counsel in the case’? When counsel is told at court ‘can you book yourself for that?’ Or when a solicitor rings or writes to instruct counsel and an entry is made in the diary? Or (as I rather suspect will be the case) only when the full instructions land upon ones desk. I have cases in my diary months ahead to which I am committed, and for which the fee will now very probably be significantly less than I expected when I was booked. Notwithstanding the longstanding nature of my instruction I will probably be paid under the new scheme. I would complain about the unpredictability of all of this, the impossibility of making sensible financial plans, and the total disregard for the impact of this on the individuals trying to make a living out of this work, but in reality it is all so very predictable.

Since the formal consultation ended, the Legal Services Commission has had a substantial amount of constructive engagement with stakeholders. They have provided a considerable amount of detailed advice on how to improve the structure of both the advocacy and representation schemes – primarily to recognise complexity in cases. [I am biting my tongue as I type this considerable finesse on the events of the last several months.]

Our original proposals have been substantially revised to reflect many of their suggestions. This has required a considerable amount of reworking of the assumptions that underpin the modelling of the fee schemes. I have concluded that in order to ensure that those models are as accurate as possible, further analysis is required before we publish the final fee schemes. [Really? Who'da thunk it?]

My officials and the Legal Service Commission will be working on the fee schemes over the summer. They will be finalised and announced in time for the September bid round for new civil contracts in April 2010.

I think that’s what is technically known as a climbdown. Now we await the announcement later in the summer.

There is little else to say at this stage except to thank all of those who have worked so hard on behalf of lawyers, children and families to ensure that these proposals were recognised as the half baked nonsense that they always were. Until I see the proposals I will not believe for one minute that the powers that be have actually been persuaded by the ‘constructive engagement’ and ‘detailed advice’ we have all given them: a cynic (who me?) might say that what they have been persuaded by is the realisation that it is practically and politically impossible to proceed without being seen to be responsive. Enjoy your summer holiday if you have one booked, you may not be able to afford one next year. I shall be on an exotic trip to Scotland when the announcement is made (living it up on the legal aid gravy train again). Rather than seeking out a wifi hotspot I think I will be delaying the inevitable thud back to earth until I am back in the jurisdiction.