The new chairman of the Bar Council has called on Lord Justice Jackson to consider exempting counsel’s fees from any fixed recoverable costs regime he recommends following his ongoing review.
In a wide-ranging speech setting out his priorities for the year, Andrew Langdon QC (pictured), a criminal law specialist at Guildhall Chambers in Bristol, said it was “optimistic” to suggest that solicitors would share with barristers “the resultant (very much lower) fixed fees” that may come out of the review.
He said: “We join with solicitors in doubting the wisdom of promoting ‘a one-size-fits-all’ policy. But if I am right that the Bar risks being squeezed out of the process, what does that mean?
“Now is not a time to be diffident in asserting our value. Let me assert it: litigation without specialist barristers will be to deny the parties and the court the best advocacy. And who doubts that we, compared to other litigation costs, are value for money? Less of the Bar means less specialist legal analysis; less evidential focus; more satellite litigation and expense; more false starts; longer, less focused trials; more missed opportunities to settle claims at appropriate stages and for the right amount and, last but not least, less efficient use of court time.
“So here is a critical piece of reform – piecemeal in the sense that Lord Justice Jackson’s brief is not so wide as to consider how the reforms, when taken together with other pressures on the junior Bar, will affect the long-term viability of our profession.
“Even viewed in isolation, I believe the case for accommodating within the scheme some mechanism or criteria for allowing the recoverability of costs reasonably incurred in the instruction of counsel at each critical stage of litigation would be a compromise in the public interest.”
Mr Langdon also expressed concern over the court reform programme, which he described as “more akin to an organisational ‘change management’ programme for a FTSE 100 company”.
He explained: “It feels as if we are in the hands of consultants. The process of change involves champions – some of them senior judges – and stakeholder leaders, and we are all encouraged to endorse the message.
“Some of the language used by senior judiciary in describing what is coming our way has become almost evangelical in tone.”
Mr Langdon acknowledged that some of what was planned was “not only sensible but long overdue”, such as digital case working, but he said critics of the wider programme should not be sidelined on the basis that they lack vision. “It may rather be that they see all too well, but they do not like what they see. If we are to have a proper debate, we need to air our views.”
He articulated two specific concerns: “I am not persuaded that making revolutionary change when there is no plan B is very sensible. Are we keeping courts open and resourcing traditional means of delivering justice sufficiently, while trying out plan A? If not, it means of course that plan A has to succeed whether or not it is a good idea…
“Second, I am not convinced that moving to a world where the default position is that a hearing will be virtual as opposed to real is a good idea. I am sure it is cheaper. I am sure it is more convenient. I am sure there are many who would rather not go to court. The question is: Should those factors – price, convenience and a disinclination to attend court – be the predominant considerations in the delivery of justice in an open society?
“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometimes put, the ‘majesty’ of the law… Whereas no-one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the court are only in the virtual presence, rather than the actual presence of judicial authority.”
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