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Monday Message 07.04.14

CBA Chairman’s Update:
Nigel Lithman QC

Monday 7 April 2014


Personal Email: [email protected]

Throw of the Dice

You may not believe it but I am a gambling man. Whether it’s the horses or blackjack, I like a flutter. I even have an account at William Hills. I like to assess the odds first before placing my bet. I don’t always win. Speaking personally, I’m willing to take calculated risks but I have never been a speculator. I prefer to bank my winnings. So this has been a big weekend for me with the Grand National. It is a wonderful race in which I first tipped a winner when I was just a little boy. The horse was Merryman II. Like that great tradition, this Monday Message has now been running through the tenure of three Chairmen of the CBA. In return for the hours they spend composing it, comes the prerogative to spell out within it that which they choose.
This past week has shown the number of serious issues for you to debate and consider in deciding how to cast your vote. Whatever your view of the circumstances surrounding the initial acceptance of the deal, please put them to one side. This is now your opportunity to assess the risks and make this decision. Please take it. The most important thing is that you exercise your right to vote.
The CBA has been posting the submissions received on both sides of the debate. If you haven’t been following them, please go to the blog at to engage with the debate and read the viewpoints there.
I have been asked by some of you to clarify what an acceptance of the “deal” would/would not concede on your behalf:
Accepting ‘the deal’ means: 

  1. Our action on No Returns & “Strike” days would be suspended. 

  2. We would “bank” the agreement to defer the “average 6%” cut (in reality we know the figure is much higher than this) to AGFs until at least Summer 2015. Should this government or any other seek to reintroduce this “average 6%” cut to AGFs, we would retain the right to continue our action. They know that we could and would do so. 

  3. VHCCs. In principle, there would be no objection to those wishing to do so undertaking VHCCs at the current rates offered. The position would remain as now: a matter of personal choice whether or not to accept a VHCC case. We have impressed upon the MOJ and will continue to do so that in practice we anticipate that the stalemate will continue, there are unlikely to be many, if any, takers at the current paltry rates of pay. 

  4. We would work with them to find possible better alternatives to the VHCC scheme such as the AGFs Plus “within the same overall budget”. They are fully aware however that if the Bar will not work for reduced rates now, it is unlikely to work for them then. If all that is being offered at that stage is a different model still translating into a 30% fee cut, the position in practice is likely to remain the same. Those who will not work for 30% less now are unlikely to work for 30% less then just because the model, name or structure is changed. 

  5. We are not a trade union. We are a collection of self employed individuals. As has always been the case – and will remain – we have the freedom of choice to accept or refuse a brief from any solicitor subject always to our professional obligations under the Code of Conduct. The acceptance of this deal does not affect your rights in this regard.

May I add two points: 

  1. Accepting the deal does not mean that this is the end of the road, our work is finished and we can achieve nothing further. This is only “the end of the beginning”. We would use this as a platform to build upon, to move forward and engage constructively with the government to achieve a better outcome for us all. With the channels of communication open, we would go into those discussions with a credible position and a clear strategy. Whether it is this government or another, they can be in no doubt that when the Bar speaks united with one voice our view cannot be ignored. 

  2. Accepting this deal does not mean that we are ignoring the very difficult position solicitors are in or leaving them stranded. Were the outcome of this vote to be an acceptance of this deal, I have no doubt many members of the Bar would continue to give such practical support they can to solicitors in the action(s) they take in the same way that they assisted us to operate the no returns policy. This will remain each individual’s right. 

Rejecting the deal means: 

  1. The government would withdraw its offer to defer the “average 6%” cuts to AGFs until at least Summer 2015 and would be free to introduce these cuts as planned.

  2. The CBA would be free to reinstate the no returns policy and days of action with immediate effect

  3. VHCCs: the CBA would be free to continue to object in principle to barristers undertaking VHCCs at the reduced rates.

  4. There would be a new CBA policy adopted as in the wording of the “yes” campaign i.e. “to continue no returns and days of action until all the cuts and reductions in (solicitors’) contracts are abandoned”

  5. You commit to continue the dispute until these aims are achieved

  6. There would need to be a unified campaign at national level across all circuits. To be effective, this would need the total commitment of the CBA membership in conjunction with a unified solicitors’ campaign.

  7. There would be no timeframe for this continued action

  8. There would be no guarantee of success.

It is essential that the ballot should be decided upon the real issues in question and not on speculation. Many people have posted comments stating that they hope Tony & I will continue to lead the CBA if the deal is rejected. Others have gone much further and asserted that, if we were going to resign in the event that the deal is rejected, we would already have said as much. We would not dream of making any such announcement either way. 
Whichever way you vote, you must read the arguments, engage in the debate and then assess the risks for yourself. You must decide whether, like me, you prefer to bank your winnings and vote NO or whether you want to roll the dice again & keep rolling it until you get the perfect 6. 
Further details of the Ballot are HERE.

Whatever you decide, please ensure that you VOTE.

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