Plans proposed by the Bar Council have been afoot since 2004 that would give Barristers the power to sue Solicitors over late fees. What could this mean for both of our legal professions? Could this lead to a flurry of litigation between barristers and solicitors?
It should be noted that before these proposals were given the green light by the Bar Standards Board, the Withdrawal of Credit Scheme (WCS) was in place. The past system was that Solicitors instructed Barristers, based on non-contractual and non-enforceable terms. The only way a Barrister could take any legal action against a Solicitor was if they were seeking to put a Solicitor on the aforementioned WCS scheme. If, after such legal action had taken place and a Solicitor was put on the WCS list then the only way a Barrister could accept work from said Solicitor was if payment was made in advance.
These new changes would see the introduction of new contractual terms that would ultimately govern the relationship between the two professions. These contractual terms set out the basic legal obligations that the parties would have, including the parties’ responsibilities. This would also include execution of work, and creating liability for the late payment of fees with a clear means of enforcement. If, both parties decided against going to court then the contractual terms would give redress via a joint tribunal. To protect the courts from a possible flurry of litigation between barristers and solicitors, shouldn’t the standard form of dispute resolution, in the contractual terms, be via a joint tribunal?
The Bar Standards Board, however, has dropped the proposals for these terms to be applied in default if other terms are no agreed to.
Included in these new proposals, apart from the contractual terms, the Bar Standards Board have proposed that the WCS scheme be abolished, and for a new list of defaulting solicitors to be made. This list contain the solicitors that were already on the old WCS scheme and will also include solicitors who either fail to pay any award via a joint tribunal or who fail to adhere to judgements made by a barrister for outstanding fees.
Nick Green QC (speaking to the Law Gazette) said that he did not expect the changes to lead a flood of litigation against solicitors. Others have commented on the fact that this could be disadvantageous to solicitors.
These proposals have been in negotiation for the past 10 years, although the Law Society have ceased to be apart of any negotiations. This brings the situation into the unknown as it could be any length of time before any terms are agreed to between the Bar Standards Board and the Law Society.