IBC 2014 Annual Dinner – Chairman's Speech

Lord Chancellor, my Lords, Ladies and Gentlemen, welcome to the Annual Dinner of the Institute of Barristers’ Clerks. As unopposed but elected Chair of the IBC, it is my privilege to say those words. It is so nice to see so many friends and distinguished people attend this dinner.

The Institute of Barristers’ Clerks consists of just over 1,000 members; recruitment has been very healthy over the past 12 months. The Management Committee of the Institute is relatively small, consisting of 31 members.  All members of the Committee give of their time freely and all ultimately spend a lot of their spare time over the weekends and late into the evening assisting all its members.  With the rapid change in how chambers manage themselves, the huge burden of additional work due to regulation and the additional marketing done by clerks, especially for those who do publically funded work, time is very short  so  I  would personally  like  to  thank  all  of  the  members  on  the Management Committee for their time effort and wisdom in ensuring that the Barristers’ clerks voice has relevance in the legal world. Many thanks should also go to each Head of Chambers of those on the Management Committee for allowing them to work for the IBC during normal working hours.

I would also like to thank the Vice Chair of the IBC, David Green from Dyers Chambers for his patience, Counsel and wisdom.

I should also like to thank Nicholas Lavender QC, the Chair of the Bar who is doing a fantastic job in continuing the sterling efforts  made by  Maura McGowan QC last year and who has an excellent relationship with the IBC.

Before I proceed any further, I would also like to thank the very generous sponsors of the IBC for allowing us to hold this event. Without your support it would  not  be  possible  to  enjoy  such fabulous  food, excellent  wine  and company, and all for free, so can I ask all of you to join me in thanking them.

I would briefly like to mention one sad matter this evening. For many years the IBC has invited the unsung heroes of our legal system to this event, the Listing Clerks from the High Court, Court of Appeal and Supreme Court, in all divisions. I am delighted that one has attended, but only one. The reason is that many feel that they are now breaking the Civil Service Code in relation to gifts or hospitality. I don’t know about you but I think what a sad world we live in. It appears to be a grey area. The IBC represents all chambers and clerks and we would like to recognise the assistance they give to all, during the course of the year. We are not marketing, we are a professional body. I hope somebody here this evening will take up the challenge of ensuring that acceptance to a Dinner for a professional body, is acceptable in the future.

Members of the Management Committee sit on many Committees at the Bar Council. These include, The International Committee, Access to the Bar Committee  Professional  Practice  Committee,  Equality  and Diversity Committee, Remuneration Committee and the Civil Public Panel.

We also have a very strong Junior Clerks’ Committee which organizes events and talks and has been a great tool for recruitment to the IBC.

As I mentioned last year I still feel it would be helpful to the MoJ, BSB and LSB if a clerk was able to sit on one of your various Committees. We are expert in assisting with implementing the dictates that are handed down to us, we know the market and we also can see difficulties before they arise!

Our Education Committee has also been working very hard in the development of the careers of young clerks. The BTEC course goes from strength to strength 28 attended the course last year and I have noticed that many chambers now make it a a requirement for junior clerks to have taken the BTEC qualification when they are recruiting. The diploma in Leadership and Management for Practice Managers and Barristers’ clerks, which started last year and which can lead to a degree, now had 28 attending this 2 year course. This augers well for our profession.

The IBC also runs many talks and lectures of real value during the course of the year and I am pleased to say that we are currently organising an in-house legal conference event in October. This will be open to all members of the IBC and in-house Counsel. We have a number of very distinguished in-house lawyers who will talk of the virtues of going direct to Counsel, both in terms of cost and value.

My first year in office has been a varied and interesting one. I have given talks on Contractual terms to a joint COMBAR/Chancery Bar event, a daunting task in front of 300 lawyers! One of the most enjoyable events was as guest of honour at the Middle Temple clerks’ evening, which takes place every 5 years. Having to speak immediately after the Treasurer The Rt Hon The Lord Judge was also quite daunting.

I have also spoken to a delegation of lawyers from the US and most recently a delegation from Russia and China under the Bar Council exchange Scheme. I attended the Bar Council’s delegation to Shanghai, Beijing and Seoul as Chair of the IBC last September led by Maura McGowan QC who I am delighted to see is here this evening. I even gave a speech at the Peace Palace in Shanghai; it does not get much better than that for a clerk! Here I would like to pay special thanks to Chantal-Aimee Doerries QC from Atkin Chambers, who is Chair of the International Committee at the Bar Council and also to Adrian Hughes QC of 39 Essex Street who is also on the Committee. Both do a huge amount of work for the Bar in fostering relationships overseas and promoting the Bar in general. Chantelle has seen that the future is International work, not just for the civil Bar and her energy and vision does the Bar great credit.

But whilst international work may well be the way forward, London needs to be careful. Other jurisdictions are providing arbitration facilities and encroaching on London’s territory.  Indeed Singapore is due to open its International Commercial Court as well this year, with judges on a ￡1M salary, allegedly! Not enough to tempt our judges I am sure.

I have 6 members of chambers working in Singapore this week. We are flying the flag in legal exports, but I am sure that 5 years ago those cases would have been heard in London. All the cases use English law as the choice of law.  When I was in Seoul last September, most of the major Korean law firms stated that until recently, their choice of venue for their clients (and there are many large multinational companies in Korea), was London and New York, with English law contracts. It is now Singapore with English law contracts. London could therefore be missing out, not in lawyers’ fees but in influence and invisibles. We must ensure that we make the international business community and foreign litigants welcome in London.  There should be no criticism of foreigners using our courts.

You, Lord Chancellor, and the government should welcome them. They come to London for the quality of our judges, the first class service of Barristers and our respect and adherence to the rule of law.  English law is the choice of law for the international business community.  It is the law of merchants and we are very lucky that it has developed as such.

Despite some difficulties in relation to the new BSB Handbook and the difficulties with legal aid, the IBC maintains excellent relationships with both the BSB and the LAA and we are delighted that both are participating at our annual conference in Leeds on the 21st June.

Regulation has come to the fore with the new BSB Handbook. Despite some grumbles the IBC think the BSB have done an excellent job in producing the new Handbook and they should be congratulated.

One of the major changes to the Handbook is that legal aid may now not be considered a “proper fee” and is therefore not subject to the cab rank rule. How ironic that the regulators have recognised this.

The challenge for many clerks though has been the implementation of rule 22 in the new Handbook in relation to contracting with each solicitor on every new  set of  instructions from 6th  January  this  year. This  has  led to a huge explosion  in  paperwork  and  adapting  computer  systems  to  ensure clear records of who has agreed what, and when. But the real challenge has been negotiating with each firm. The time taken, I would estimate has been up to 20% of additional work for many senior clerks.

Many firms, of course, have adopted COMBAR/CLLS B terms.   With amendments in their favour, such as deleting assignment from the contract, or adding terms that would invalidate the Barrister’s insurance by adding clauses in relation to unlimited liability or clauses that would incur on a Barristers’ professional obligations, particularly in relation to confidentiality. For example on the disclosure of whether you have worked for any party involved in the litigation in which you are to be instructed, or what cases the Barrister might have been involved in prior to instructions. Whilst many major law firms have a huge compliance team crawling over the contracts, the majority have no idea of the professional obligations that Barristers have. And the clerk ends up dealing with the majority of these contracts and terms, prior to confirmation of the Barrister being happy to sign.

As a clerk, I and many others are very concerned how COMBAR/CLLS Term B, where the solicitor will simply use best endeavours to pay Counsel, is acceptable.  But of course the law firms are in a dominant position; agree the term or we will not instruct you. How can it be right though that a leading city law firm, with perhaps a ￡1Bn turnover, can contract with a junior Barrister say charging ￡50 an hour, on the basis they will use best endeavours to pay them. No law firm would enter into this contract, no expert would agree such a contract, but the Bar is lumbered with it. It does the legal profession no good at all and you wonder of all professions, how has this happened. Something for the regulators perhaps? Some might say that the terms have been negotiated, but COMBAR do not represent the Bar.

Referral fees are also a problem. The IBC has received many complaints from its members recently as well as members seeking advice. Of course we are all aware that Irwin Mitchell’s suggestion of a reciprocal arrangement whereby the amount of work billed by a set of chambers would be monitored and chambers would  have  to  pay  10%  of  fees  back  to  Irwin Mitchel  by  other means. Several ideas such as training and providing in-house cover were quite rightly rejected by the BSB, as a referral fee. However a more insidious system is now operating which is not condemned by the BSB.

For  example,  there  is  a  consortium of  entities  in  the  North  West  which comprise of a number of public bodies that are mainly local authorities.

What they say, is that they have a computer portal that needs to be paid for to allow them to instruct Counsel. They request chambers pay them a sum of money, in some instances up to ￡1,000 for you to register with them.  If you do not pay the sum, you will not receive instructions, or even be considered, it’s as simple as that. This has been brought to the attention of the BSB and has not been rejected as a referral fee.

Now the concern that the clerks have, is that if you are not allowed to receive instructions or bid for work if you do not pay a fee, then this is nothing more than a referral fee, however it is disguised. No money no work. But I feel it is also more pernicious.  Smaller chambers may well be at a disadvantage if the fee rises each year and the larger chambers are happy to pay to the extent where smaller chambers will not and are knocked out of the competition for work. However, I suppose that should be filed under a “free market”.

The IBC would ask that the BSB to again look very carefully at such a scheme or anything similar  that  they allow.   We  do  not  know  if  we  can appeal  any decision on such schemes to the LSB or indeed the Ombudsman, but it is something the IBC are now looking into. If it appears not to be acceptable to solicitors, then why is it acceptable for the Bar? The IBC are also aware of a number of organisations who are looking at similar schemes for the Bar on the basis of what the consortium are doing.

One of the success stories for the Bar is the Bar Pro Bono Unit. As you can imagine its services are required more than ever now. Many Barristers’ clerks assist in the deployment in finding Counsel, but the real heroes are members of  the  Bar who  give  so  freely  of  their  own  time.  There  have  been 1,914 requests for assistance over the past year up to March 2014 an increase of 50% over the previous years. 80% of cases are accepted. The Unit has over 3,500 panel members including a third of all QC’s. Interesting that many MP’s phone the Unit asking for assistance for constituents as they cannot get legal aid. If you take into consideration the fabulous work that the Free Representation Unit does, having over 1865 referred cases, then the Bar should be congratulated in what they do for the community. This is one success story though that you will never read about.

Legal aid for criminal work has also hit the headlines and is causing great concern to many clerks.

There is no need to recount the difficulties in relation to the Op Cotton case. What does interest me though is the immediate knee jerk reaction of the MoJ press office when the case was stayed upon application due to insufficient representation for the defendants. For example it was stated that ‘a Barrister would earn good money in any event, ￡100,000’. Seems a lot of money to the average man, but let’s examine it. The trial was set down for 4 months (later the indictment was split and the trial was 3 months with other defendants being tried for 6-8 weeks). There were 46,030 pages of evidence. In addition 194 excel spreadsheets with a combined total of 864,200 lines of entries. The case was described by the court of appeal as “an extremely important but complex  case”,  an  experienced  QC  would  have  allowed  3  months  in preparation time. Now taking a very conservative 50 hours per week, but we all know criminal lawyers work late into the evening, and I should  know I’ve seen ‘Silk’ on the television many times, but as I say a conservative 50 hours per week. Spread over 7 months that works out at a very conservative 1400 hours, so dividing into ￡100,000 it works out at ￡71ph. Now the MoJ normally include VAT in their calculations when they quote figures for the Bar, but I shall not, but expenses may equate to around 20%. So the figure for a good quality silk, dealing with an extremely important but complex case works out at ￡57ph profit.

The future for the criminal Bar is gloom indeed, clerks have been aware for many years.

But nobody thinks of the long term consequences.

We often hear of fat cat lawyers gorging themselves on public funds, (I wonder if Walter White of Breaking Bad is working in the press office), but you never hear of the junior Barristers traipsing around the magistrates court all day for ￡50 and paying their own expenses and travel costs and that’s if you can get the work.  Nor indeed of the 45% cuts in real terms for criminal legal aid over the past 7 years before the 30% cut for VHCC. Equality of opportunity is becoming a serious issue now, particularly at the criminal Bar where pupillages are becoming much more difficult simply because they are not on offer.  The BPTC course is ￡18,000 alone, pupillage minimum is ￡12,000. At ￡50 a day, with no hope of paying of your student debt, the future is very bleak indeed. The cuts are also seriously affecting working mothers at the Bar with high childcare costs.

I am also interested in why the criminal Bar is discriminated against when it comes to public funds. After all the treasury counsel panel rate (which is public money), for Barristers above 5 years’ Call is ￡80ph. This rate has not changed for at least 15 years; compare that to an experienced criminal silk on ￡71ph.

Sir Bill Jeffery in his report on “Independent criminal advocacy in England and Wales” raised concerns and stated “If the Bars share of the work continues to decline, as the current generation moves to retirement, the supply of top end advocates to undertake the most complex trials will be a doubt”.

But perhaps a greater concern is where will our judges come from in the future.

Sir  Bill  also  states  that  chambers  should adjust  its  model  of  working to compete  for  legal  aid contracts.    This  seems  reasonable  but  there  are difficulties for many chambers.

The advantage is that chambers hold the purse strings and can dictate.

Many clerks feel that the disadvantages are that most sets won’t have the experience of running such a contract and would almost have to become a mini law firm. You’d need agents to cover the police station work and would probably need some form of solicitor / paralegal assistance to prepare cases. There is also a big disadvantage, that once solicitors know you are bidding against them, this will affect the flow of other work to chambers. One small matter as well if you do become an ABS, will there not be conflict issues, for example  how  could  you  possibly  have  members  both  defending  and prosecuting a defendant where Counsel are from the same ABS. So the choice for the  public  becomes  much  more  limited.  The  independent  criminal  Bar would be no more. Moving into legal entities that share risk and profit will ensure this and I feel that neither the Regulators or Government are aware of the consequences. They seem to think that practising from a company or legal entity is the same as practising from a set of chambers. It is not.

I am always particularly interested in articles on the law and especially how to save money. One particular article grabbed my attention written by a lawyer from Tuckers. He suggested that Barristers could cut costs in three ways; not having an office or chambers, having no IT facilities and God forbid, no clerk! Barristers should be “virtualised”. They should work from home and wait for somebody from Tuckers to call them no doubt. It is not suggested, but any cost saving would no doubt be creamed off by Tuckers or even passed on to the LAA? No mention of course that the same concept should apply to his own firm. But it did get me thinking.  What about virtualised judges, that would save  a  fortune  or  dare  I  say  this  in  front  of  so  distinguished a  guest,  a virtualised Lord Chancellor, perhaps that may not save so much. Indeed what about virtualualised courts, witnesses and defendants. The cost saving would be enormous! Of course the reputation of our system might be brought into question and Justice may be seen not to be done but the cost saving….

The article also went on about how good HCA’s are.  They may well be, but all Barristers’ clerks know that judges are now getting very concerned about the quality and the drop in standards of the advocates appearing before them. I suspect many judges may now be burdened with additional work in reporting on the quality of advocates in some awful report they have to do each month in the future. The system is beginning to fail and we clerks all know why.

But the biggest cost to our system of Justice is surely waste.

Last September it was reported that research by the London Assembly Conservative group revealed that 23,000 criminal cases in London’s Crown and Magistrates court were dropped or delayed, of which no fewer than 9500 “were due to failing by the CPS”. Replicate that nationwide.

This is a huge waste in the system, a vast waste of taxpayers’ money, our money and needs to be addressed.

You, Lord Chancellor, have quite rightly pointed out on many occasions that we must recognise that our legal aid system is one of the most expensive in the world. But what of course you Lord Chancellor I am sure, also recognise, as we all do, is that our legal system is also one of the best in the world. The Bar has played its part, the criminal Bar has certainly played its part The Bar is one; it is not split in civil or criminal, publically funded or private. IT IS ONE.  As the best in  the  world,  the  Lord Chancellor  to  the  judges  to  the  court  staff  to  the lawyers,  clerks,  short  hand  writers,  ushers,  interpreters  to  the  estimated 320,000 who are employed in legal services in England and Wales, we should all be proud of our legal system. The income from legal services is estimated at ￡26Bn so there is no subsidy at all. Indeed if you wanted to split the legal services into two, private and publically funded work, it is quite obvious that the privately funded lawyers subsidise the whole of the legal aid budget with a huge excess left over, so no cost to the taxpayer.

Can somebody please tell George Osborne?

Thank you for listening to me and I hope I have given you all food for thought.

Brian Lee

Chair IBC

12.6.2014