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Monday Message 14.10.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 14th October 2013

Personal Email: [email protected]


Remember the clown who, having blown up his car, fallen over his shoes, eaten the fire and swallowed the sword, starts spinning plates on top of the sticks? In order to keep them spinning, he has to go and give each a flip before the plate falls to the ground?
I am that clown.
The plates have NO to QASA, NO to CUTS, CRIMINAL BAR and JUSTICE written on them. Just as we are keeping the plates aloft and giving NO to CUTS a spin, the NO to QASA plate falters and we have to rush over to attend to it.
Of course neither the BSB nor the Ministry of Justice mind if both plates fall along with the one marked Criminal Bar. What they haven’t realized is that JUSTICE will fall with it.
This week the spotlight turned back to QASA:
1.   Costs
Having received leave to pursue our JR application to argue that QASA is unlawful, a protective costs order was granted in the sum of £150,000. The cap was imposed having heard argument that the LSB regard their reasonable legal costs at £400,000 and our very own BSB £100,000, figures to make our members’ eyes water.  This generated a certain amount of twitter; only the most insensitive would be surprised at that.
On the 11th October the BSB issued a statement of costs, asking that we clear certain matters up. They ask that we make it known their costs have not been agreed by them at £400,000, but a mere £100,000. If they succeed they will only receive a proportion of the £150,000 cap as awarded.
This of course means that the costs the LSB (who have now changed their original solicitors) and the BSB together consider reasonable for this 2-day JR hearing are £0.5 million. They could have employed a level 4 legal aid counsel, someone whom they say is perfectly “able to appear in the most serious of cases” for about £300.
Of course I am happy to oblige the BSB and set the record straight. That they do not realize how shameful a light this shows them in is a comment on their judgment. Having chosen not to take the same course as the SRA or our distinguished legal team by acting pro bono, it would have shown more sensitivity to keep quiet and reflect upon the irreparable damage they have done to the relations between our wonderful profession and themselves.
2.   Expedited Hearing
The hearing of the substantive JR application is now marked to be heard “before 17th December” 2103.
3.   The Circuits Assist
With thanks to them and their Leaders, the Circuits have joined the CBA in agreeing to indemnify the claimants in the JR proceedings should it become necessary: The South Eastern Circuit to the sum of £30,000, the others £17,500 each and Wales and Chester, the smallest Circuit, at £10,000. With the £40,000 pledged from the CBA, this has enabled the JR application to proceed to a hearing.
No doubt the BSB would say quite right too, without pausing to reflect that the subs to the Circuits are ALSO paid by CBA members.
4.   Whip Round
It is regrettable that having to take these actions on behalf of the Criminal Bar will make it necessary to raise monies from the membership to assist. Details will be forthcoming soon.
This will be the third time the Criminal Bar will be asked to contribute. So what’s new?
Tues 8th October:
THE KALISHER LECTURE enabled us to pause and remember the much admired and respected MICHAEL KALISHER QC. The Kalisher Trust distributed awards to exceptional candidates. The evening represented what our profession is all about.
In delivering the lecture, LORD JUSTICE PITCHFORD focused on the proposed cuts and the irreparable damage they will do to our profession. He contrasted the financial position of the criminal barrister of his and his father’s day to today.
Never wealthy, but able to make a living and survive.
In thanking him, I said he sounded like a CBA Committee member, which he probably was, whilst in practice from the Wales and Chester Circuit.
Wed 9th October:
EXECUTIVE MEETING: I was able to announce that the positive response from the Heads of Chambers to both questions is close to 100%.
A reminder of the questions:
i.              If the government indicates that it will proceed with the proposed reduction in AGF fees from 2014 are you prepared to take lawful direct action?
ii.             If the proposed new VHCC rates are introduced in December 2013, will you refuse to work at the proposed reduced rates and/or return contracts as entitled?
With input from the Action Group, the Executive are approaching the issue of Action on a step by step basis. How many more steps there need to be will depend on the government.
STEP 1 – VHCC: New Cases
We will not now enter into new VHCC contracts.
STEP 2 – VHCC: Existing Contracts
We are awaiting final advice from procurement and contract silks (pro bono) which should be with us this week. Informally, the advice we are receiving is positive; once confirmed and, at the appropriate date, we will return VHCC contracts.
It would of course be understood by those returning such cases that they will not be picked up by others.
Thurs 10th October: I met with our friends from the Solicitors Profession, including the LCCSA and CLSA.
A joint statement is being worked up, as indeed am I, at the moment.
Message from the Vice Chairman:
“On Wednesday of this week I addressed a meeting of Solicitors  in Manchester. One very clear message came from that meeting, attended by representatives from big and small firms alike and that was they will stand shoulder to shoulder with us in our fight against the cuts. Let me put to bed for good this idea that solicitor HCAs will be queuing up to do Crown Court work. Not in the North. They realise that this fight is there to be won. They are our trusted allies.
On Friday I closed a busy week of meetings and the like with the privilege of speaking at the LAPG annual conference. Lord McNallly was carded to attend but as he had lost his job this week he cancelled. Unsurprisingly his political replacement, Shailesh Vara, didn’t turn up and so as usual the Civil Service were forced into action this time in the person of Dr Elisabeth Gibby. One question the meeting were anxious to hear an answer to was what plans did the goverment have in place if Barristers refuse to work at the new rates? Her reply. There is no plan in place?
Well let me tell you why. In the same way they ignored our responses, treating us with contempt in the process, they believe the Bar are all talk. They’re wrong. They have been warned.
Defending Legal Aid – Statement by 1 Pump Court
Legal aid row overshadows plan for global law summit in London
Herbert Smith Freehills kicked off QASA judicial review after high costs proposal
@TheCriminalBar: 1 Pump Court lays its cards on the table. Who’s next? #savelegalaid
@TheCriminalBar: Shailesh Vara. The new Minsiter for #legalaid. Replacing #McNally Will HE engage with the legal profession?
@TheCriminalBar: Still more reasons why CUTS COST MONEY! Immigration Law this time #saveukjustice
@TheCriminalBar: Would you like to do 3 month fraud for £21 per hour? Nope. Do you want to be represented by someone desperate enough to work for that? #VHCC
You may be saying what are we doing now? Very soon you will be longing for the quiet days. In the meantime, let’s all work together to keep those plates spinning.

Nigel Lithman QC

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