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Mark Fenhalls reasons for accepting the deal

Mark Fenhalls QC explains why he believes that the MoJ deal gives the CBA everything it had been asking for, subject to VHCC cases which ‘nothing on earth would induce him to do at the ludicrous rates on offer’.


I spent many hours last year drafting parts of the CBA’s Responses to both consultations.   At the request of the Chairman and the Executive I have attended many meetings with MoJ officials over the last six months as we have sought to persuade them that we were right and that advocacy fees should not be cut further.

When I heard the news at the Executive meeting on Wednesday last week I was stunned. I had anticipated many different outcomes but not this capitulation by the Government.

That capitulation came about because of the resolve of hundreds if not thousands of barristers across the land who said “no more”. No returns and the days of action created an unprecedented change in the public and political view of our profession. But it was not the action alone that achieved this. Crucial to our success were the real numbers underpinning legal aid “spend”.

So at the Exec meeting last week I voted in favour of the agreement because it gave us everything the CBA had been asking for in our responses to the consultations and during the subsequent negotiations so often described by the Chairman in his weekly message.  There is of course a caveat – we got what we asked for in relation to GFS, but not VHCCs, a subject to which I will return briefly below.

Since last week there has been an eruption of discontent. I have been spared much of it because I have never activated my Twitter account, nor have I ever had a FaceBook page. But I have to say that however well-intentioned it may be, the opposition to the deal is misplaced.    

The CBA mandate was not and is not to fight the fight of others, for better or worse. Had the solicitors’ leadership been offered a deal that gave them everything they wanted but at the arguable expense of the Bar, do any of you think they could or would have said “no”? I believe the Bar got what it asked for on behalf of all advocates (and I mean advocates not barristers) because individual barristers everywhere demonstrated a cohesive and unprecedented willingness to act as one. I wish I could say the same of employed HCAs but I cannot.

The fees for advocacy have long been viewed by many solicitors as an attractive target. None of us need educating on that subject. This would have been the case whether we preserved current fees (as this deal achieves) or if they had been cut this summer. The forthcoming threats that may emerge as the new contracts are thrashed out are real threats we would have to meet in any event. This deal changes none of that.  

The Government has decided to shelve part two of the cuts to solicitors’ fees. This is a major victory for them. But in relation to part one, solicitors are already accepting work at the lower rates and there is plainly no way back from that. The moment they agreed to work at those rates that battle was lost. That is not the CBA’s fault.

VHCCs. This battle will continue. Like many I think the scheme is deeply flawed and needs urgent reform. Individuals may do what they wish, but nothing on earth would induce me to do one of these cases at the ludicrous rates on offer.   If others feel the same way and act accordingly, I am confident market forces will bring about a rapid review of the system.

For these reason I shall be voting to accept the deal and saying No to further action.

Mark Fenhalls QC


5 thoughts on “Mark Fenhalls reasons for accepting the deal

  1. Your apparent failure to appreciate why this deal is so bad for access to justice is worrying.

    Small and medium firms invariably instruct the Bar on all matters. Large firms don’t. Solicitors supported the no returns policy because we knew it was a joint effort with the Bar. It would not have worked without both sides playing their part.

    The objective, I thought, was to prevent cuts and the duel contract. The larger firms fear both more so than the smaller firms. The smaller firms would continue to instruct counsel because quality of service for the client and financially better for the firms and by extension, the Bar.

    We needed to continue the pressure on CG. The CBA have damaged our greatest asset. We were united and that was CG biggest concern.

    You talk about the VHCC stance as if something has been achieved. You fail to see that, where once solicitors were dismissive of threats of sanctions by the LAA for failing to find alternatives to instructed counsel, because we believed we were united, that loyalty has gone. It has too because firms believe we are on our own. I have been asked by the LAA, only yesterday, if I have counsel sorted on a VHCC. What do I say? Risk losing my firms contract? Before the deal, I was committed to the independent Bar, now I am looking at in-house inter-firm instructions. In my view, a far more palatable deal would have been to accept the 30% cut in VHCCs and a cut of 8.75%. In return for dropping the duel contract, cuts to the AGFS and further cuts. Not ideal, but good firms have a level playing field and good counsel still has the chance to obtain work from those firms. The CBA position has weakened smaller firms to the detriment of the Bar.

  2. There has been no “shelving” of fee cuts. There has just been a call for time to justify them. Once we are weak enough to accept them with no more than a stifled moan they will be introduced.

    It is worth reading the briefing note for litigators on the MoJ site: https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/user_uploads/litigation-note.pdf

    This restates the unenforceable agreement to take the reviews into account but goes onto say: “Providers should plan and bid for duty and own client contracts on the basis of the second 8.75% reduction, as they will be expected to demonstrate that they are capable of delivering at that level. The fee cut will be no greater than this. The number of Duty Provider Work contracts will not change.”

    If, in summer 2015, the current or future Lord Chancellor says that he has considered the reviews and notes that large firms of solicitors are still solvent in the brave new world of efficient courts, then there will be every fiscal reason to introduce a further 8.75% cut.

    The whole point of efficiency drives is that they are repeatedly used to justify cuts not increases. If we are more efficient then it means we can work for less. The greater the efficiency, the less the cost of production. We are the producers. It is basic market economics. The MoJ does not have a special dispensation with the Chancellor to be run on an altruistic basis.

    In the same way, https://consult.justice.gov.uk/digital-communications/transforming-legal-aid-next-steps/user_uploads/advocacy-note.pdf , deferral of cuts to AGFS until the efficiency reviews means that the more efficient we can be the more it can be justified that we should be paid less. That is how it was justified in the consultation – less providers, more work, therefore less fees per case. Do we erase that from our memories now?

    Efficiency reviews are for the purpose of saving the tax payer money. They are not a driving force of fee increases; quite the reverse. This is not Machiavellian thinking. It is simple political reality.

  3. I regret that you have exchanged this years fees for next years complete collapse in your customer base.

  4. Mr Fenhall,

    I think your self congratulation is a little premature. I am a specialist criminal defence solicitor and own my own firm. I stood by the Bar on the no returns policy. I wish the Bar had taken the threat from the Graduated Fees scheme seriously when it was rolled out – the next step was inevitable. Solicitors warned of the consequences. 2 tier contracts and a 17.5% reduction in fees will result in fewer firms. The advent of the factory firm is here and they will employ HCAs. The junior Bar will be destroyed. Please think again.

    Yours sincerely,

    Mike Gray
    Gray & Co, Chester

  5. Leaving aside questions of whether or not we promised not to do a deal in isolation of the solicitors because that would not be a basis of undoing what has been done is it not the case that our future success is inextricably tied to the fate of our solicitors. Acting in their interests was not an altruistic action but one that protected our interests. Helping them is essential to our continued wellbeing. And we have left them to fight alone. We cannot effectively contribute.

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