Judgment in wasted costs matter arising out of ‘No Returns’

The CBA implemented the ‘No Returns’ policy to cases falling after 7th March 2014. This policy was designed to show what happened when we removed our goodwill from the CJS. Under this policy, where counsel had a diary clash which could not be resolved through the court moving one or other of the clashing cases, counsel would return one case in the expectation that no one would pick up the return. On the final day that this policy was in effect, a Judge at Norwich CC issued a wasted costs order against the barrister who having returned her instructions so she could be elsewhere, did not attend at Norwich CC.

Simon Spence QC, acting pro bono and in the best traditions of the bar, represented her and had the wasted costs order overturned. What follows is the Judgement delivered today by HHJ Holt, the honorary recorder of Norwich. The Judgment was noted down by counsel who attended and will be replaced with the official judgment once it becomes available.

The CBA publicly expresses its thanks to Simon Spence QC, who gave up his time to deal with this matter, together with the barrister concerned who had to suffer through this ordeal.

 

Ruling in the matter of Re D (A Barrister) Norwich Crown Court 10.4.14

 

We have discussed this matter in chambers, now in open court, anything further I say will be in open court. I am going to give ruling:

 

This is a matter involving allegation against the BS who is charged with defrauding an elderly person by undertaking repairs that were not required and charging vast sums of money for it. He has previous convictions. This matter came before this court at the PCMH in January before HHJ Bate when matter was listed for trial last week.

 

Cousel who represented BS asked HHJ Bate if the date could be adjusted to fit in with her diary. It is well known that at this court we try as far as possible to accommodate counsel as in the experience of this court, by cooperating with these requests it assists both the court and the defendant.

 

I have spoken to HHJ Bate who has no recollection of the particular hearing however I have no reason to question the attendance note which Counsel sent to her instructing solicitors on the 13.1.14. It is a typed out a note and was sent to instructing solicitors following the hearing. It confirms that she had asked for it to be moved to another date however the court was unable to accommodate the request. So the trial was fixed for the 26.3.14.

 

Matter was listed on the 26th March for trial – her instructing solicitors having applied to have it taken out some 10 days before then. In the application letter, it seemed to indicate that Counsel had not returned case until a day or so before the hearing and therefore potentially in breach of her professional duties.

 

I therefore ordered for it to be listed on the 26th March without witnesses and the matter came before Deputy Circuit Judge Jacobs.

 

No one for defence appeared, unsurprisingly, Counsel having made plain she could not attend. The deputy Circuit judge purported to make a wasted costs order at that hearing. He did not specify an amount and counsel had no opportunity to put before the court her position. The matter was then sent back to me to resolve.

 

I have received an extremely helpful and well set out bundle setting out the chronology, a skeleton, attendance note and other documents. It is quite plain to me having read this that the situation is completely different to the one that was believed to be the case.

 

It is quite plain that Counsel knew at the PCMH that the trial might clash with a pre-existing fixture. Question is should she have returned it the evening of the PCMH? It is well known counsels duty is to return the brief within reasonable time so that a competent member of bar can take over that return and be fully prepared to present the defendant. This is not complicated, someone could pick this up overnight and be in a position to properly represent the defendant the next morning.

 

What did happen is this. Counsel knew that she had fixture in Leicester running at the same time. She retained the brief with the possibly that something might happen to that fixture – and indeed the trial in Leicester went short. In the meantime another of her cases at Blackfriars came in, which was chronologically in her diary earlier. That matter was more complicated with defendant in custody suffering from mental health issues and having pleaded guilty to a number of offences. She had to make profession decision about which took priority, which I understand.

 

She returned the BS case, some 15 days before which would have been plenty of time for someone else to prepare the trial. By that stage the CBA advice to members had come into effect and the no returns policy was in place. So the situation was her instructing solicitors could not brief someone else her place.

 

On her behalf, Simon Spence QC argues that in any event she is no longer party to proceedings having returned the case to her instructing solicitors. That is an interesting argument which I have no need to resolve today. I have to look at whether there are grounds to suggest or condoning the suggestion that Counsel acted unprofessionally in a manner to give rise to Wasted Costs. There are a number of matters that need to be considered:

 

1. The Judiciary have to be entirely Independent and cannot take sides between the Bar and any dispute with remuneration it might have with the Government.
2. Wasted Costs Orders have huge implications for a barristers career, potential for sitting as recorder, or taking silk, therefore it is essential before making such an order that full facts be ascertained and judged.

 

 

This did not happen in this case, I don’t mean to criticise the learned Deputy circuit judge as often sitting on the bench matters can get frustrating.

 

But having had regard to the documents there is no way a wasted costs order would be appropriate or anywhere near to being appropriate. Counsel and her Instructing solicitors acted entirely professionally and in those circumstances I rule that no wasted costs should be made in this case.

 

A contempt of court act order was then made preventing Counsels name from being published.

Message from the Chairman

Yesterday 1,878 members of the Criminal Bar participated in a ballot that will shape their immediate future. This turnout was way in excess of any previous CBA vote and showed the depth of concern felt by so many for the issues that have confronted them for so long (for those unaware the “No” vote polled 1249 votes and the “Yes” vote 629).

The vote followed open and informed debate from the majority of those seeking to share their views.

Whilst a mandate was given for banking the agreement to shelve the cuts and accepting the “deal” offered by government, 1/3rd of those voting felt obvious misgivings about how the Bar would be impacted upon by cuts and dual contracts being imposed on solicitors. Their views will not be ignored.
The immediate task to hand is for the leadership to reunite the membership as we move forward in pursuit of an ever more secure Criminal Bar. This will be achieved through engagement via the different inquiries into criminal advocacy currently commissioned, as well as continuing the intense discussions with government, which they have committed to approaching with “an open mind”. We have accepted these assurances in good faith.

At the same time, whilst the CBA has naturally concentrated on removing the imminent threat of cuts to the junior bar, it knows that this has to be seen within a broader context. We will thus now hope to reengage with solicitors and hold constructive talks.

This is a first step.  There is a long road ahead. VHCCs will remain a matter of personal choice and we will monitor how the market operates closely. Direct action is suspended and we hope will not be needed again. This is a milestone in the history of the Criminal Bar. It was achieved through unity of the membership and with the combined leadership of the Bar Council and Circuit Leaders. We trust that no one will ever confuse again the fact that we are a responsible profession with the idea that we are a powerless one.

May I thank Aaron Dolan for his work above and beyond, Richard Bentwood for operating the blog and all of those that took the time and trouble to write for it as well as vote.

Nigel Lithman QC

The CBA Result – votes for deal to be accepted

The CBA votes to accept deal and suspend further action
The CBA membership were balloted on the following question

“DO YOU WISH TO CONTINUE ‘NO RETURNS’ AND DAYS OF ACTION UNTIL ALL THE CUTS AND REDUCTIONS IN [SOLICITORS’] CONTRACTS ARE ABANDONED?”

The total number of votes cast was 1878

629 ‘Yes’ votes were cast being 33.49% of the total number of votes cast.

1249 ‘No’ votes were cast being 66.51% of the total number of votes cast.

Accordingly, the ballot is in favour of acceptance of the deal and the suspension of further action.

Announcement as to timing of CBA ballot result

The CBA ballot is being overseen by a retired Crown Court Judge and closes at 18:00 on Wednesday 9th April.

The result will be announced at 19:30 on Wednesday 9th April on the CBA website, CBA blog and the CBA twitter feed.

Pick a Path, ‘voting is an obligation, not just an opportunity’ by Adrian Farrow

PICK A PATH

There is no right answer to the ballot question. The points of view for and against the deal are, as the contributions to this blog demonstrate, sincerely held and equally valid.

I participated in a meeting of the Northern Circuit on Saturday at which speeches from both sides of the debate were given equal prominence, delivered with equal commitment and received with equal appreciation. Not for a moment that I believe most people present did not have firmly held opinions one way or the other. But the issues were aired publicly and forcefully in a civilised way.

I recognise and appreciate the arguments eloquently advanced by contributors such as my fellow Circuiteers Simon Csoka and Jaime Hamilton, together with others, which will be familiar to readers of this blog and Twitter.

I see and have articulated, along with others, the factors which underpin the decision taken by the CBA Executive and my own view.

We have embarked on a ballot in which every member of the CBA has the opportunity, (and I would say the obligation), to contribute to the direction in which the CBA will move forward. Those members who fail to cast a vote will waste their chance to help to shape our future. Everyone who does vote, in whichever way, is expressing a unity of purpose with the rest of the CBA and, I believe, a commitment to abide by the result of the ballot, whether that be ‘yes’ or ‘no’.

And isn’t that a re-statement of our most effective weapon? That, contrary to the long-held view of the outside world, the criminal Bar will never be able to act together, we have shown, through a refusal to work on VHCC cases at the new rates and the No Returns policy, we can demonstrate a unified common aim.

The result of the ballot will determine the direction of our next steps. However we cast our individual votes, the most important demonstration of our strength will be when we put aside the debate of the past 12 days and move forward behind the leadership of the CBA as the ballot has determined. Our ultimate goals remain exactly the same. This debate and this ballot are about choosing the path to take to achieve those goals.

Closing Remarks – your Chairman, Nigel Lithman QC

By 6pm this evening when the ballot closes, two weeks will have passed since the CBA Executive took a collective decision to accept “the deal”. With the benefit of hindsight, what would I change? If I had known then what I know now? One thing only: the acceptance of the deal without calling first for a ballot of the membership. We acted swiftly to reverse this. But two weeks on, have I changed my mind? No, I am still voting to accept the deal – or, in answer to the question posed by the ballot, I am voting NO.

The wording of the ballot was triggered by the request for an EGM to consider the wisdom of accepting the deal and instead replace it with these words as our new policy.  Knowing we were unlikely to find a room for 4000 people to debate this, coupled with the fact that it is always a good idea to hear from those that do not shout loudest, I chose a ballot as the fairest way for the whole membership to have their say. Whatever the outcome, the CBA Executive has committed to accepting your decision.

I have had to wade through rather a lot of treacle in the last week but, as you would hope, have had time to read and absorb the cross section of views expressed through the blog and through speaking to people. I also looked at twitter during the first few days, but decided that rather like the warning on cigarette packets it was bad for my health.

There is one aspect of this process that has been unwelcome. No doubt feelings are running high, there are those who are angry, those who are desperate and those who feel passionate about their arguments. We are used to an adversarial system, we are used to exchange of argument, but threats & abuse have no place here. Whatever the outcome, I very much hope no-one who is disappointed starts playing a “blame game.”

At the same time those of you that have watched this campaign evolve realise that we are not complacent. We have now got Direct Action as part of our armoury for ever. That psychological barrier has been crossed. For 7 months I have said that “Not a penny more” cuts was the aim. In the eyes of an unwavering Lord Chancellor, that became  suspend the cuts as you cannot justify them. They blinked first.

Based on what I was asking for and had spoken about for months (or has no-one been reading the Monday Messages?), the deal could only have been bettered by the Government agreeing to reverse its’ position on VHCCs. As of now, and at the paltry rates offered, the VHCCs are still being refused. This “deal” does not change that. The CBA is not and would not tell you what cases to take. The market place will decide. And if the stalemate continues in practice, the battle over proper remuneration for VHCCs will continue.

We are now asked by the “Yes” Question to demand a different and all-reaching outcome, one whereby the number of solicitors’ contracts is reinstated and all the cuts for everyone abolished. This is an ideal – one with which none of us quibble – but I’m afraid it is one that I do not believe we can deliver. Not because I lack fight or courage but because I live in the real world. Wanting and getting are not the same thing. Only Tony & I know what it took to get us to this point, the battles we fought to persuade many to join in our action and the number of hurdles we had to jump. It was our unwavering determination, supported by you, that got us to the point where we secured this offer. But I do not believe as we move forward that we are going to find the same unity amongst the membership – or across all solicitors firms – that would have to be in place as a very minimum to continue this fight until all these aims are achieved. I believe we will be chasing a pipe dream.

In the last two weeks I have been called the worst thing since sliced bread. I have also been accused of being anti solicitor. Neither is true. Whilst sliced bread is not particularly nice except when toasted and with marmite (and no I am not calling for a ballot to choose between marmite and marmalade), my personal and professional relations with solicitors for 37 years has been excellent. But I was not elected to represent them and I would no sooner dismiss this deal than I would expect them to dismiss a like deal for their own profession. Being pro bar does not make me anti solicitor (I am sure that is somebody’s law). I simply believe voting “Yes” means throwing away what we have achieved for something we cannot.

Saying No to the ballot and yes to the deal is not a sign of weakness, hostility or appeasement. I think that to do anything else would be complacent and reckless. But one thing I do know is me and I suspect many of you now also feel you know what makes me tick. Having banked our winnings, I will move on with Tony to build a better place for the Criminal Bar. I have no doubt that as of this moment the prestige of the Bar has never been higher in the eyes of government, the Judiciary and the DPP. I do not think we should apologise for this but take pride in it. We have built that. Let’s not knock it down. 

We are not “giving up”. We are all aiming for the same ends. But we can achieve these in other ways. On-going constructive discussions that address the fears expressed throughout this debate; we must find ways to address and secure sources of work for the Junior Bar. We must move forwards with solicitors and provide them with such practical support that we can. The government is now listening, they are willing to engage and we must now show “good faith”. Rejecting this deal will destroy that.

In truth it has taken us less time to get here than I thought. This is not the end of the road, there is still all to play for. 

Please Vote. Vote NO and let’s work on the rest.

The Vice Chairs’ commitment to you

27 POINTS TO TAKE INTO ACCOUNT IF CONSIDERING VOTING YES AND MY COMMITMENT TO YOU

 

“Do you wish to continue no returns and days of action until all the cuts and reductions in (solicitors’) contracts are abandoned?”

 

 

1. If you vote Yes, CBA policy will change and direct action will continue until all the cuts and reductions for Bar and solicitors are abandoned. Those supporting this position must be prepared to do whatever it takes to achieve these aims. They must be prepared to demonstrate that they can lead a unified national organisation, which would operate with the full support of every circuit, to achieve their desired purpose in the way which we have demonstrated over the past 7 months, without fracturing that hard fought unity that we have achieved amongst our members by careful planning of our action.

    

2. Prior to (in my role as Organiser of the Northern Circuit Action Committee) and, once elected as Vice Chairman of the CBA, I took two weeks out of court and toured the towns of Lancashire and Manchester and met with solicitors to try and build political relationships. It became apparent to me (if it was not already something that 32 years’ experience of practice had proved) that this would be an uphill struggle.
3. During my time as VC (building on Mike Turner’s work) I have met with (and fostered good relations) with the current leadership of the LCCSA and the CLSA on many occasions. Bill Waddington and I spoke frequently by phone. They have a thankless task. They represent but a small proportion of practising solicitors.
4. I have met with and spoken with members of the BFG. It is clear that they have their own agenda, which they intend to pursue in the interests of their own firms.  I have spent hours with some of them. I have tried and better tried to find a way to accommodate their position with ours. I have learned though that it is foolish to pretend that there is unity between the bigger firms and the small. What unity exists is transient and temporary. Think back to 7^th March. Why were some of the BFG motivated to join us? It was because they were disappointed that contracts were to be awarded to the 525 not the 300 they expected.
5. I have been privileged to campaign alongside a small group of Manchester solicitor practitioners since April 2013 when I began to organise the Manchester ‘resistance’, if I may call it that. However those committed to the cause have been largely a handful of individuals based in Greater Manchester.
6. I have been privileged to share campaign platforms with Manchester solicitors over the course of the dispute (and, may I say, whilst few other members of the Bar were present). I have chosen to support them. I have encouraged them to unite behind the CLSA and fight with us. I will return to what happened on 7^th March and the message I conveyed to solicitors.
7. I do not accept nor have I accepted that the partnership has been an equal one. The leadership of the solicitor organisations believe that they have made an equal contribution to the days of action and the No Returns Policy. I am afraid I disagree. I believe that this fight has been Bar led but with the support of some solicitors – not all by any stretch of the imagination.
8. I do not say that the CLSA or the LCCSA have not led their own fight because of course they have (and have demonstrated real leadership in the organising of events) but I do say that it has been the Bar who has been united in not attending at Court and consequently the Bar that have had to make the majority of the economic sacrifices and who have run the risk of disciplinary action.
9. Think back to 6^th January. I accept solicitors had little time to prepare, but did solicitors nationwide really support the half day? In some areas support was very strong. In some areas the support was completely non-existent. The CLSA will disagree and it may be that in some areas support was strong, but what was the level of support in Lancashire and Greater Manchester and Liverpool? What degree of support was demonstrated on your Circuit?
10. In the days leading up to the 7^th March day of action, I discovered that the majority of Lancashire solicitors were all working. I discovered that the CLSA had only one representative  on my part of the Northern Circuit. I communicated my concerns to Bill and Nicola Hill by email. I was certain that if that was happening in Lancashire it was also happening in other areas outside the major cities. Eventually because I knew the resources of the CLSA were stretched I took matters into my own hands. I asked a respected solicitor friend and colleague to call a meeting of solicitors for the county of Lancashire. A handful turned up. It was plain to me that there was little unity and that any impetus for action derived from the efforts of the Bar. On the 7,^th the major Magistrates’ courts of Preston and Blackburn sat. HCAs went to work at Preston. Ask yourself this question about the courts near you for 6^th January and 7^th March. Did those regional Magistrates’ courts sit? What was the level of support given to you by HCAs?
11.  On 7^th of March I spoke in Crown Square Manchester and then at the Friends Meeting House. (I wanted to speak in England’s first city-not London). There were perhaps 500 people outside Crown Square but later at the FMH perhaps 200 or so solicitors. Of those present only approximately 10% were members of the CLSA. 10%! I implored the remainder to join up. I spoke of my friendship and admiration for Bill Waddington and how those who were not present were letting him down personally. Of how he spent countless hours working on their behalf putting aside his own interests.
12. Importantly that day I addressed that meeting on the concept of “sacrifice”. I told them of the sacrifices that were being made by people around the country; I told them of Tim Thomas  and of how he had effectively returned all his work; I told them of the sacrifices that the junior Bar were making as a consequence of the No Returns policy.
13. What did I ask them to do? I asked them to unify and to refuse to work at the reduced rates. I asked them not to accept the 8.75% cut. I implored them to unite to refuse to work at the new rates. It was obvious to me that this was the only way forward. It had been obvious to me that this issue would arise for months. I had asked them to prepare for it, they had not done so.
14. Do you remember the pledge? I know the vast majority of your chambers signed it. Remember the pledge:- that it would be unprofessional to work at the new rates. That pledge, which you signed, was not the creation of solicitors. It was my creation. It was designed to get solicitors to state publicly that they could not work at the new rates. I took the idea to a young solicitor named Alistair Parker after I heard him speak passionately at Camden Town Hall in September 2013 and he persuaded the CLSA and the LCCSA to adopt it.
15. So at that meeting on the 7^th I asked solicitors from the BFG and firms of all sizes to unite to refuse to work at the new rates. I asked them to make the sacrifices that our members were doing. I told them that they had enough time to organise themselves and they had. I left that meeting to rousing applause. I believed that solicitors were finally going to unite.
16. In effect I asked them to be faithful to the pledge that they had signed.
17. On 11 March I attended (by phone) a meeting of the NJC. It was a long meeting but that night I learned of something which caused me great sadness. I learned that our solicitor colleagues were resigned to accepting the cuts and that their fight should turn in effect to judicially reviewing the MOJ. However, they decided to look at options for a national meeting.
18. That led me the next day to write to Bill Waddington. I did not believe that the fight should end. I felt that if they worked at those rates then they would be defeated. It was time for them to really test unity. The full text of that email is HERE.
19. I did not get a reply.
20. On the 13^th the CLSA announced their national meeting for the 19^th in Manchester.
21. I wrote to BW again. I offered him the logistical support of the Bar. I did not get a reply.
22. I was extremely concerned that the meeting would be a failure. Some present say it was. Only approximately 500 firms turned up from the whole of the country. They couldn’t agree on the major issues but did agree to support probation on the 31^st March and  the 1^st of April. I have an email from a solicitor who expresses support for my position who described the meeting as a shambles.
23. However our solicitor colleagues effectively conceded defeat by agreeing to work at reduced rates at that meeting, it seemed to me that either they were not able (they say for contractual reasons) or were unwilling to do what they now expect our members to do on their behalf and that is to stop work and to suffer the economic hardship that was required of our own members.
24. I knew then that although their fight was not over that they had weakened their position perhaps irrevocably.
25. Since then the CLSA have sought to remedy this situation by not applying for through orders. Will this work? Is it a national scheme? Will it be supported?
26. I have sought to work alongside our colleagues. But I am not VC of the CLSA. I represent Barristers. I cannot fight their fight for them. Our relationship with the Leadership of the CLSA and LCCSA seems badly damaged. I am sorry that that has happened. I dare say that had they been in the same position as us with the MOJ they would have taken the same decision and by a similar route. Do you believe that solicitors would have refused to accept the withdrawal of the 17.25% fee cuts until the Bar had got what they wanted? What would have been the reaction of their Solicitor members?
27. I though have not withdrawn my support for Bill Waddington and Nicola Hill. I will continue to work with them if they wish so. We share many similar beliefs as to the structure of the CJS. I though firmly believe in the unique value that an independent Bar has for the CJS.

My commitment to you

Many of you are frightened that the reduction in the number and type of Solicitor firms will mean the end for the Bar. I do not agree. The CJS needs a strong independent bar. Remember my question of the Attorney General and his answer at the Bar Conference HERE Without a strong Bar and thriving sets of Chambers the system will crumble. Talent will go elsewhere. From where will the great prosecutors and defence counsel come? From where will the Judiciary of tomorrow come? Judges at all levels will be left with a rag tag and bob-tail of “Tied’ advocates, HCAs and who knows what else. Justice will be denied and delayed. We know this, the Judiciary knows this and I believe so does Mr. Grayling.  I give you this undertaking. I will fight to ensure that the Bar has its rightful place in the system and the supply of work to support our members. I will work to ensure that those who support us are heard. It is time to unify our support:- from solicitors, the bench, and political organizations who believe in us and the value of an independent bar and make it heard. If any system is devised which threatens that service which we give to society and have done for centuries then I shall call upon you to demonstrate that you will not accept it.

 

We have said that we will engage with Jeffrey and Leveson. Nigel Lithman has shown the Bar what determined and courageous leadership can achieve. I have witnessed first hand the quite incredible effort he has shown on your behalf. I am proud to have been his VC. His determination with the support of the Executive Committee of the CBA has given us the time, leverage, and strength to try and cure the inequalities in the way that we work and are rewarded and I give my commitment to you that I will do my level best to ensure that your views are heard. 

 

 

VOTE NO AND ALLOW ME TO CONTINUE THE FIGHT.

No Glad Confident Morning, but some hope. VOTE NO

As yet another long and tiring campaign reaches its denouement, the Government has come to both sides of the legal profession with two proposals. For the Bar they had a sheet of paper titled “Elements of Proposal-Advocacy fees”. For the Solicitors’ part of the profession; much the mightier, there was another proposal. They did not vote on ours, nor we on theirs. Both proposals kept in place some of the cuts. Both of the proposals deferred others. In one case, not ours, an extra £9million was offered as interim assistance.

Both professions’ leaderships accepted the proposals. Unlike our fight on Plea Only Advocates we had won some ground. The short question for the CBA membership now is, “Were we right to accept the offer?”

The answer is yes. Not yes because we will walk into the new legal landscape hand-in-hand with a munificent and grateful Government; far from it. Not yes, because we have “won”: on my count we are still, in a decent criminal chambers, down 15% on this year and more than 50% over five years before inflation… if that is victory I would hate to see defeat. No, we were right to accept it because it maintained the field open to further argument and engagement and allowed our juniors as well as in-house advocates to work at the same rates for a lot longer.

In the long term, will this be a positive step? Who knows? For the first time in a generation a Lord Chancellor, for whatever reason, has given significant concessions arising out of a fundamental consultation not once (PCT), but twice. Since the election of a young barrister as Prime Minister in 1997, we have seen cut after cut and not a whiff of compromise. I invite anyone reading this to read Kenneth Clarke’s letter to Peter Lodder in September 2010 when he introduced the last line of cuts in three bites. It makes for interesting reading from a man seen as much more cuddly than the present incumbent. The same can be said of Jack Straw and Lord Falconer. They did not give an inch; that’s politics.

The fact that, for whatever reason, we have breathing space is enough of a reason on its own to accept this deal for the moment. I emphasize “for the moment”. This deal does NOT mean that the Bar withdraws from their arguments; quite the opposite, it gives the profession, all of it, time to re-state their arguments, right through to after the next election. If we do not, however, accept this deal, the cuts will come in and soon, in addition to the ones already in place, of that there is no doubt. It is a lot harder to reverse a cut or a tax than stop it in the first place. Income tax, after all, was only meant to pay for the war against Napoleon. “But he’s dead” did not help me on January 30th this year. “But the economy is better” will not help us either now. If we fail in our argument by next year and the appetite remains, all of the actions that have been undertaken and have been planned in recent weeks will be back on the table for a new, perhaps different, Government to deal with. The Shadow Chancellor made it quite clear on the Andrew Marr Show 10 days ago that he has pledged to stick to the current Government’s public expenditure plans; that’s further cuts for all including the legal profession. We can, of course, live in hope that Labour will take a different view if they get into office, but a quick bad character application on propensity will dash that dream. Has any opposition politician suggested that this deal should be refused and we should continue fighting? They are quiet for a reason. Negotiation is a legal art, deals are political.

So, by voting “yes” is the cut already in for solicitors going to be reversed? Is the Government going to come back to the table and shelve VHCC cuts? Is the Coalition, in consultation with such a quiet and quiescent Opposition, going to ditch Dual Contracts whilst we are on strike? Are they going to shelve next years cuts, on offer already, if we vote to go back to take further action? You have to believe ALL of these will happen if you want to vote “yes”.

There have been plenty of arguments to vote “Yes” put up on the web/blog/twitsphere. Some are a bit Che Guevara, bewigged Citizen Smiths; Some are principled and sensible, some are, I suspect triggered by a natural fear of withdrawal of instructions from angry solicitors and threats of briefs going to more compliant chambers. Some are very partisan or personal against the Lord Chancellor. Most are written in less than 140 characters; somehow. But they are all based on one real point; It is the Les Miserables rift “Can you hear the people sing..”. If we fight more, we will get more. This is the 1968 moment for a new generation. But for these arguments to work you are going to have to believe the Government will cave in to lawyers’, of all sectors, demands. You have to believe that the Leadership of the Bar, the Circuits and the CBA are completely wrong in judging this as our apogee. You have to believe that the public and our lay clients will find our striking when we have been offered most of what we want, sensible, proper and professional. You have to believe a lot.

I think Lithman, Cross, Lavender and the others got it right. They have shouldered responsibility responsibly. They set objectives and faced off the MOJ on dozens of occasions in recent months and got us to where we are. They batted for the whole profession on PCT and cuts, they got unique concessions and they put realpolitik above romance. It’s not perfect, it never is, but we live to fight another day whilst protecting our juniors, HCAs and the legal system as best we can for the moment. Finally, perhaps most importantly, we have achieved that precious gift, time, which even a fortnight ago no one, anywhere, thought we would have. We lose it at our peril.

Why Confucius Would Vote ‘NO’ (if he were alive, and a CBA member)

‎ADVOCACY, FOOTBALL, CONFUCIUS AND RADAR

Armchair football managers

I don’t want to write for the blog. I don’t trust blogs. To my mind they’re up there with Twitter and Facebook; too much stuff said too quickly by too many people with too little insight and zero responsibility. Like earnest blokes talking about whether Southend will miss the play-offs because of an inflexible 4-4-2. It might be genuine insight. Or it might just be talk.

I’m not an expert on the future of the criminal justice system. I’m a keen amateur, but if you want figures ask Chris Henley. I’m not a political type. I can’t detect subtle currents in party politics. I’m not an accountant or a business analyst. I can’t tell you what big solicitors’ firms will or will not do.

I am an advocate, and that’s the only expertise I can bring to bear. So I have approached the ballot question as an advocate.

I am not going to address all the issues that have been raised time and again on this blog. You don’t need any more speculation about whether the Lord Chancellor is ‘on the back foot’ or ‘REALLY on the back foot’. I adopt the submissions already made supporting the ‘NO’ vote. Repetition won’t improve them. My contribution is merely a couple of thoughts.

Better is the enemy of good

Every advocate has experienced what I am about to describe. You are in court cross-examining and it is going well. You are asking a tight chain of closed questions. The witness is flagging; to begin with they were analysing each question, trying to see where it might be leading. Now the witness is struggling to give a respectable answer to each question as it comes, just trying to bat them away. The weaknesses of their evidence have been exposed. You can feel you are winning. You might be starting to enjoy yourself. An observer might later say you had the witness on the ropes.

And then it just goes wrong. The classic beginner’s error: one question too many.

It is drummed into us early on in our careers. October 1998 for me, Middle Temple Advocacy Course: ‘Better is the enemy of good’. It was an expression I had not come across before. I didn’t get it at first. But, as every honest advocate knows, sooner or later you experience it first-hand. Although you don’t see it coming, the moment you have gone too far, realisation strikes you like a fist. You give away all your gains in the pursuit of more, an afternoon’s careful work undone in a moment.

A number of people throughout history have warned of the dangers presented by the quest for ‘better’. Clever guys like Aristotle, Confucius, Voltaire. More recently Robert Watson-Watt, less immediately familiar, but also pretty clever. He was one of the pioneers of the early warning radar system that alerted the RAF to Luftwaffe bombing raids during the Second World War. His maxim was this: “Give them third best to go on with. Second best comes too late. The best never comes at all”.

And isn’t that precisely where we are? We have made gains that we all hoped for, but which few expected would actually be achieved. Three months ago those gains would have been met with disbelief. But now hubris has taken hold and the drive from some quarters is to press on for more, ‘because it feels like we are winning, because our opponent is on the ropes’. Pause for a moment. Have I been here before?

Trust your leader

The best silks are masters of knowing when to stop. They take the tough decision and just stop talking. Their duty is to do the best for their client, not gamble their client’s chances in the pursuit of perfection. Many a junior has tugged the sleeve of their leader, suggesting they go further, ask one more question that will surely win the day, only to be dismissed with a terse shake of the head.

Nigel Lithman and Tony Cross have been our leaders for many months. They have, time and again, demonstrated insight and formidable strength of purpose. They are not pushovers, stunned into obedient submission by sitting in one of the Lord Chancellor’s comfy chairs and being offered a biscuit. They know their brief, they have watched the trial unfold and they have formed a view in the best interests of their client. You don’t have to agree with them, but let’s all concede that no-one has a better insight into the tactical complexities of our debate. They aren’t omniscient (who knows: they might be completely wrong!) but they have a better chance of being right about our situation than anyone else.

There are no easy answers. All we can each do is apply our experience and judgement to the situation in which we find ourselves. In my view, ‘the deal’ represents our best chance for the future. That’s just my opinion, but I imagine Confucius and the rest of the lads might agree with me, which is some comfort.

 

Thomas Payne

A Plague on Both Your Houses – A senior junior speaks out

With the ballot deadline fast approaching I am becoming ever more uncertain about my vote. I have followed the sometimes robust debate on Twitter, I have seen the war of words and ideologies flow, the conspiracy theories arise and then subside again. And I still don’t know which way to vote.

On the one hand, I genuinely believe that the Chairman of the CBA and his team have worked long, hard and with real integrity to represent the interests of the Criminal Bar. We could not have had finer leaders for our branch of the profession. On the other, I wonder they have fallen at the final hurdle, and succumbed to pressure most of us would have found hard to resist. I have a strong suspicion that there has been a “sub-deal” brokered by the Bar Council, who may well have added to the pressure the CBA have had to deal with. It is only suspicion, but my impression of the Chairman of the Bar, having met him less than a week before the deal was announced, was that he was a man desperate to negotiate his way through the minefield rather than stand shoulder to shoulder with his Criminal Bar colleagues. Whatever admirable qualities the members of the Bar Council have, I have always believed that long term self-interest is their motivation, and after nearly 30 years at the Bar I believe that I am entitled to say that based upon all that I have seen. I have no such reservations of the leadership of the CBA.

I have been something of a rabble rouser over the last twelve months, constantly urging others, lawyers and non-lawyers, to look at the arguments, to understand the unfairness of the system to those without whom the system could not operate, to ensure as many people as possible signed the petition, responded to the consultations, stood on the picket lines. But throughout all that, what I was fighting for was not the money, however angry I am at repeated fee cuts over my professional life time, the increasing amount of wok I am expected to do for absolutely no remuneration. Money is of course important, to ask for a decent fee for a hard day’s work is nothing for any of us to be ashamed about. My fight has been for Justice, and yes, Justice with a capital J.

I was brought up in the safe and certain knowledge that if I should ever need a lawyer, one would be there. Not just anyone, but someone who would be there for me, to represent me, to advise me, to help me, if I were ever in the wrong place, at the wrong time, and did something questionable. That if my father were to be accused of an allegation of historic sexual abuse, he would be represented by someone of integrity, and ability, whose only aim would be ensuring he received a fair trial and that a jury would fairly and fully consider the evidence against him, and in his favour. That if my nephew were ever to be the victim of crime, he would be cross examined, again, by someone of ability, who showed courtesy and respect towards him, whilst still putting their lay client’s case in as robust a manner as necessary. That if my niece’s BME best friend wanted to come to the bar, the only impediment would be a lack of ability rather than a lack of resources. My career is in its second half, it has been a good career, one in which I think I have made a positive difference, to many people. I want as many other people as possible to have the opportunity to do the same.

That is Justice with a capital J. The intangible that we have all taken for granted our entire lives, and had expectations that generations to come will be able to have the same complacency. So while I am grateful for the deal, and the ring-fencing of AGFs for 18 months, it is not about the money for me. But nor is it about fighting a battle for the solicitors, who have stood by and watched, year on year, as our fees have been steadily reduced, and have happily got their HCA certification to ensure that the living to be made at the Criminal Bar has steadily declined further. It is equally misleading to say that this is a fight for the future of the junior bar – they saw the writing on the wall long before the senior juniors. They have voted with their feet, have pursued other career options, or kept their practices as diverse as possible.

The ballot, with its stark question, yes or no, does not reflect what I have been fighting for, or what I believe in. And yet, I must make a choice. Vote No, to accept the deal, and hope that the promise of looking again at the need to make cuts, the promise not to boost the manpower of the PDS, and the hope that everything will just be kicked into the long grass in 14 months’ time. Vote Yes, to continue the fight, to continue to have a legitimate platform upon which to argue for Justice, but risk OCOF and a further influx of HCAs doing the only thing they can to absorb the financial cuts already imposed on them.

A choice, but Hobson’s choice. I would not wish to stifle debate, but some to the Tweets and posts in support of both sides of the argument have not been helpful, amounting to little more than rude dismissal of the arguments of the other side. We are better than that, and are certainly bright enough to decide our own vote without being lobbied. I will vote, and facts will help me decide. Not the opinions of others, I am getting rather fed up of those. It is to that I say “A plague on both your houses”.