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CBA Chairmans’s Message – Further Advice on VHCCs

CBA Chairman’s Message:

Further advice on VHCCs 

Tuesday 26 November 2013

Personal Email: [email protected]

The BSB has clarified the regulatory position over very high cost cases as follows:
Whether barristers offered a VHCC case at the 30% cut rates have to accept the case under the Cab Rank Rule
The Cab Rank Rule does not apply to cases which are not at a proper professional fee. In accordance with the new BSB Handbook, which comes into force on 6 January 2014, barristers have to judge for themselves whether a fee offered case is at a proper professional fee. There was a transitional question about whether barristers who were offered a VHCC case between 2 December 2013 (when the 30% fee cuts introduced by Statutory Instrument are scheduled to come into force) and the introduction of the new BSB Handbook on 6 January 2014, would be bound by the Cab Rank Rule to accept the case.
VHCCs have never been deemed to be at a proper professional fee under the current Code of Conduct. But there was uncertainty as to whether the introduction of the rates prescribed by Statutory Instrument would mean that the reference in 604b of the current Code of Conduct to legal aid fees “subject to regulation” be deemed to be at a proper professional fee, could become applicable to VHCCs for that period of one month. Paragraph 5 of the BSB statement of 25 November clarifies that “the deeming provision in rule 604 will not be treated by the BSB as becoming applicable to VHCCs during this brief interim period.
Whether barristers in a VHCC case, in which the fees are cut by 30% mid-contract, are prevented by the Code of Conduct from exercising their right to terminate the contract
The BSB have stated that the existing guidance on their website HERE still stands:
This “permits barristers to treat their instructions as withdrawn in circumstances where the basis of remuneration is altered.
In summary: a barrister offered a VHCC case is not bound by the Cab Rank Rule to accept it, and a barrister whose rates are cut mid-contract is not bound by Code of Conduct to continue with the case.
The Bar Council has this afternoon issued an update to the profession on VHCCs HERE.

Members have now received advice from Ian mills QC on the contractual position plus the latest from the BSB. Whether people choose to terminate contracts and not enter into new ones at reduced rates is entirely a matter for them.
The advice is clear: counsel is within his or her’s rights to terminate in the manner and by the date in December, there would be no “clawback” and he or she is still not obliged to work for inadequate remuneration.
Nigel Lithman QC

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