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Legal Action on Behalf of the CBA

Dear Colleague,

Mishcon De Reya are retained to act pro-bono for the CBA in order to pursue:

  • very grave concerns raised by many of you about the processing of your data, if it is entered into a court form to record your participation in a day of action.
  • the Government’s assertion that they cannot lawfully attach an uplift in fees, implemented via a statutory instrument, to representation orders for current cases.

You will recall the important and effective work undertaken by Mishcon De Reya, on behalf of the CBA, to prevent the roll out of ‘covid operating hours’ aka extended operating hours in 2020.

We are grateful to them for offering their services to us again, in support of the action that you are presently engaged in.

Court Forms 
Specialist leading counsel, acting on a pro-bono basis, were instructed to consider whether the completion of court forms recording data about barristers participating in days of action amounts to unlawful processing of personal data. Mishcon de Reya have written to the Ministry of Justice to raise concerns, and to the Information Commissioner urging an investigation.

Anya Proops QC and Zac Sammour from 11KBW are instructed by Johanna Walsh (Partner), Adam Rose (Partner) and Jon Baines (Senior Data Protection Specialist), at Mishcon De Reya.

We extend our sincere thanks to them all.

Letter before Claim re Statutory Instrument 
Yesterday we updated you that we have taken advice from leading counsel on whether the Lord Chancellor can lawfully increase AGFS fees payable to barristers for work that is yet to be done in respect of existing representation orders.

We circulated a summary of this advice, to all members, which you can access here.

We confirmed that we would continue to pursue this issue with Government, on the basis of the advice, by all appropriate means.

We have now taken the next step, in seeking a fair resolution of our demands in relation to AGFS fees, by instructing Mishcon de Reya to submit a letter before claim to the Ministry of Justice, on behalf of the CBA.

The potential claim for judicial review relates to the refusal of the Secretary of State for Justice to apply any increase in barristers’ fees to existing criminal legal aid cases.

The Ministry of Justice has stated it cannot apply any fee increase to work done in the future under existing AGFS Representation Orders, asserting that to do so would require a retrospective change.

The letter before claim makes clear that the MoJ’s position is wrong in law – the Lord Chancellor holds the power to both increase and decrease fees payable to criminal advocates under the legal aid regime. There is no restriction preventing the altering of fees in respect of work yet to be undertaken on current cases in the backlog.

Thomas de la Mare QC (Blackstone Chambers), Tom Hickman QC (Blackstone Chambers) and Faisel Sadiq (Gatehouse Chambers) are instructed by Johanna Walsh (Partner) at Mishcon De Reya.

We extend our sincere thanks to them all.

Special Thanks 
We extend our particular appreciation to Faisel Sadiq for the extraordinary work he has already undertaken for the CBA.

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