Home » Uncategorized » Richard Atkins QC – leader of Midlands Circuit

Richard Atkins QC – leader of Midlands Circuit

As I am sure you are now aware, the CBA is holding a ballot which closes on July then 14th in respect of the 8.75% cut to Solicitors litigators’ fees. The question we are being asked to vote on is this:
• Solicitors face an 8.75% cut to litigators fees. In support of solicitors, do you wish to go back to ‘no returns’ and also refuse all new work with a representation order dated from 1st July 2015 until such time as solicitors decide not to take further action in respect of that cut? Yes/No
I have up until now stayed out of the debate as it is a matter for each individual to determine what he or she wishes to do. I have though now decided to enter the debate as a result of seeing material which has been published in the press and on social media and having spoken to many of you.
I would like first of all to remind everybody that we are professionals and urge caution before hitting send on whatever tweet or message you propose to issue. We spend our lives arguing cases in a professional manner in Court and I see no reason why the same standards we bring to bear to our professional day job should not also apply when making pronouncements about the current issues on social media. I urge everybody to listen to both sides of the argument and respond in a tolerant and civilised way. Everybody is entitled to their own opinion.
I have been at the Bar now for 26 years. I have stood up for what I believed to be right and have supported the action taken by the Bar in the recent years. This time however I think that matters are not as straightforward as some are making out.
I have seen the argument being put forward that it is only by taking action that we ever get anywhere with Government who do not respond to anything else. I have seen the contrary argument that it is only by negotiation that we will persuade Government to think again. It is my view that it is a combination of action and negotiation that has been effective to date and that we need to think very carefully before any further steps are taken. Action brought the MoJ to the negotiating table with the Bar and they have continued to negotiate ever since.
What are the issues facing us? Many members of the Bar believe that dual contracts pose the greatest threat to the Bar that there has been in recent years. It is feared that the only way that a solicitors’ firm will be able to make money is by taking the advocacy in house, thus killing off the independent junior Bar and we have already seen the “Crime Diary” proposal from one of the Big Firms Group, Tuckers Solicitors, which many think will effectively cut out the independent Bar. Others are of the view that the only way that solicitors will be able to survive with the dual contract system is to outsource as much as they possibly can to the independent Bar. Only time will tell.
I know of no member of the Bar who wishes to see any Solicitor lose their job and there is understandable concern over the effects that these contracts and cuts will have on both sides of the profession. There is an understandable desire amongst members of the Bar to do what they can to help those firms that have helped us over the years.
BUT the CBA ballot question is very specific. We are being asked to vote on whether we will take action to support a reversal of the fee cuts for as long as Solicitors take action. We are not being asked whether we will take action in respect of dual contracts. I assume that is because Solicitors are not currently taking action in respect of dual contracts. For my part I consider that the ballot is addressing the wrong issue. It is dual contracts that threaten our existence, but with over 1000 bids in for the 527 contracts, and no sign of any solicitors withdrawing their bids, it would seem that the contracts are going ahead.
My opinion, if anyone is interested, is that if we take action over this issue we risk damaging all of the good work that has been done in the last year or so and put at risk the relationship we have been developing with the Ministry of Justice. I am not so naïve as to think that Government will not at some point in the future possibly go back on their promises and if they do then we will take action. But at this precise moment in time we appear to have a Lord Chancellor who understands the value of the independent Bar (see his Mansion House speech on Wednesday night in which he vowed to safeguard the future of the criminal Bar, eradicate the market failures which create incentives for abuse of the system, ensure that the advocate is instructed because he or she is the right person for the job and to stamp out “inappropriate payments between parties” ) and civil servants who appear to be listening to us.
Look at what has happened over the last 12 months:
• Cuts to AGFS postponed and then not implemented
• “Instructed Advocate” redefined by Statutory Instrument so that the person who does the trial or takes the plea gets the money rather than the person who did the PCMH.
• Resolution of the VHCC dispute on terms favourable to the Bar and Solicitors
• Advanced discussions on a new and fairer AFGS scheme
• Indications from Government that they accept the findings of Jeffrey and Rivlin
• A reversal in the expansion of the PDS, although I accept that the action currently being taken has apparently led to its resurgence
The “No Returns” policy worked last year and is a very powerful weapon if used appropriately. I am afraid that I personally do not consider that this is the correct time to use it given the question posed in the ballot. I fear it will undo all of the good work that has been done over the last 12 months. It is my opinion and judgment that the best course of action for the Bar at the moment is to continue with negotiation and engagement with the MoJ. The MoJ’s attitude to the Bar is now radically different from what it was 18 months ago.
You will by now I am sure have gathered that to this question in this ballot I will be voting “no”. I know that some of you will agree with me and some of you will disagree with me. You will all have your own views. What I ask simply is this. If you are a CBA member, please exercise your right and vote. This is an important issue and it is crucial that there is a large turn-out.

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