News in brief – 18.10.2018

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CLSB criticised over ‘newsletter guidance’

The Legal Services Board (LSB) has expressed concern over a plan from the Costs Lawyer Standards Board (CLSB) to issue a newsletter advising Costs Lawyers in independent practice about the need for transparency on issues such as price, service, redress and regulatory status.

The LSB this week issued a progress report on all of the legal regulators’ work to implement the Competition and Markets Authority’s (CMA) recommendations on transparency in legal services.

The CLSB issued an action plan in July 2017 which argued that “a significant proportion” of the recommendations were not applicable or not deliverable on the grounds that, as it only regulates individuals, it cannot make an entity employing Costs Lawyers comply with them, while those individuals may have “limited or no ability to force their employer into complying with CMA expectations of an entity”.

In its initial assessment of the plan, the LSB said that, given the CLSB’s “operating context”, it was satisfied the CLSB was taking more limited action compared to some of the other regulators, “although well-targeted activity could make a positive contribution to improving market outcomes for those within scope”.

The action plan committed the CLSB to issuing a guidance note to those Costs Lawyers who do not work in-house or for an SRA-regulated firm in respect of transparency.

The progress report said: “CLSB has informed us that it plans to change this to a set of recommendations included in a newsletter drawing on an internal review of good practice by other regulators completed in July 2018. CLSB has informed us that it feels this is proportionate given the small number of Costs Lawyers that would be affected by these recommendations.

“Nevertheless, we are concerned that a newsletter has a different status and much less permanence than guidance.”

Elements of the action plan completed include adding the address and phone number of the employer of each Costs Lawyer to its public register, where permission had been given under data protection law, and adding content about unregulated providers to the CLSB website.

The LSB also noted other activities conducted by the CLSB that were not in its plan, such as publishing revised guidance on client care letters and on complaints handling.

It said too that the CLSB has increased its funding contribution to Legal Choices, the consumer-facing website run on behalf of all of the legal regulators, and improved signposting to Legal Choices from its own website.


Crime barristers threaten more fees action

The Ministry of Justice is now considering the responses to its consultation on changes to the advocates’ graduated fee scheme, which are likely to make for difficult reading, with the Criminal Bar Association threatening a return to industrial action if the scheme is not improved.

Its response highlighted a stream of shortcomings:

  • Fees for guilty pleas and cracks are far below what they should be.
  • Refreshers for juniors are too low.
  • A ‘Hatton Garden’ type burglary, or indeed any burglary, will always pay less than a shoplifting: “Justify that.”
  • A case with thousands of pages is paid as if it has less than 200.
  • Fees for violent disorder and affray have been cut.
  • ‘Shaken baby’ cases with multiple experts “are paid as if a minor punch-up”.
  • Unused material, disclosed because it is of potential relevance to the identified defence, is unremunerated: “As before.”
  • The budget for Crown Court advocacy has been cut but by more than £100m over the last 10 years.
  • The £15m promised will mean only £8.6m on 2017/18 figures: “This is not remotely enough to fix the broken fee system.”

Association chairman Chris Henley QC wrote this week: “The clock is ticking. The government will need a little time to respond. But we cannot go on like this.

“Do we want a criminal justice system where the outcome of your case depends upon whether you can afford to pay? That is the direction of travel… The present funding position is unsustainable.

“Heads of chambers will meet at the end of this month to discuss the way ahead, but unless the full £15m is honoured, and that the months of delay are fully compensated, resumption of action seems inevitable.

“We need significant investment in prosecution fees too. This message has already been taken to Max Hill QC, the incoming DPP; it comes as no surprise to him.”

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Costs News
Published date
17 Oct 2018

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