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Monday Message – 20.07.15

CBA Chairman’s Message: 
Tony Cross QC 

E: [email protected]
T: 07860 692693 

CBA ‘No Returns’ Protocol

Last week the Membership voted.  On Wednesday evening the Executive met and set the start of ‘no returns’ for Monday 27th July.  We did so for good reason.  Although some barristers had already begun to decline to take returns, many more around the country had not and were awaiting the outcome of the vote. 
It is essential that all barristers who participate in this action adhere to the protocol, which can be found HERE.  If you do not, you are at risk of disciplinary action.  Wasted costs orders or being reported to the BSB are real possibilities.
Heads of Chambers will wish to make sure that all members do not merely pay lip service to the protocol, but comply with it in full and retain evidence of their compliance.  
The general rule is that instructions should not be returned in circumstances which adversely affect the administration of justice
oC16 Instructions are not accepted, refused, or returned in circumstances which adversely affect the administration of justice, access to justice or (so far as compatible with these) the best interests of the client.
Instructions must be returned if one of the situations in rule rC21 arise or rC25 applies. Instructions may be returned only when rC26 applies:
rC26 You may cease to act on a matter on which you are instructed and return your instructions if:
1. your professional conduct is being called into question; or
2. the client consents; or
3. you are a self-employed barrister and:
(a) despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available; or
(b) illness, injury, pregnancy, childbirth, a bereavement or a similar matter makes you unable
reasonably to perform the services required in the instructions; or
(c) you are unavoidably required to attend on jury service;
The protocol is designed to deal with rC26.3(a)
“despite all reasonable efforts to prevent it, a hearing becomes fixed for a date on which you have already entered in your professional diary that you will not be available”
In relation to future commitments, compliance can be guaranteed by ensuring that the instructed advocates dates to avoid are present in court whenever a case is listed. If the court sets a date which clashes with a pre-existing diary commitment, the court must be informed that the instructed advocate is unavailable and a request be made to have the case heard on a day when they are available.
In relation to pre-existing commitments, all reasonable efforts must be taken to try and have double-booked hearings moved. Such efforts would extend to emailing the court and asking them to move one or other of the cases and if that is unsuccessful, could extend to having the case listed for mention to try and get the case moved. Whether or not a formal application in court to move a case is required will depend on all the circumstances of the case having regard to what constitutes reasonable efforts in all the circumstances. Counsel should retain copies of those emails and any attendance note for the hearing which determines whether a case can be moved.
If the court will not move a hearing then the instructions should be returned promptly. In light of  C3 oC16, should counsel delay in returning their instructions once they know the court will not move a case, they would likely be in breach of the requirement not to return in circumstances which adversely affect the administration of justice.
In addition to returning the instructions, counsel must also follow the mandatory requirements of rC27 which states:
you must not:
1. cease to act or return instructions without either:
a obtaining your client’s consent; or
b clearly explaining to your client or your professional client the reasons for doing so; or
2. return instructions to another person without the consent of your client or your professional client
In short this imposes an obligation to inform the professional or lay client of the reasons for returning, which almost invariably will be because of a diary clash which cannot be resolved. I would advise that the professional client be advised of this in writing and a copy of the email/letter be retained.
If anybody has any queries as to the protocol or the operation of ‘no returns’ the Secretary can be contacted at [email protected]. Should any Queens Counsel wish to volunteer to represent counsel who although having complied with the protocol, face potential wasted costs and/or BSB hearings, would they also please contact Richard Bentwood.

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