Skip to main content

Monday Message 30.09.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 30th September 2013


Personal Email: [email protected]

I am writing this right in the middle of the consultation period.
No, silly, not the Lord Chancellor’s consultation period, the C.B.A.’s.
The Lord Chancellor said in April he was consulting on fee cuts of 17.5% and 30%. He received mountains of responses – must have binned them – and decided he was still going to cut fees by 17.5% and 30%.
I am holding my own consultation. Our consultation revolves around the way we will stop this happening. It too has deadlines.
His consultation is gracious enough to ask us to choose the way we would like to go out of business. I suppose if he’ll forgive my saying so and it is not too indelicate an analogy, a previous Lord Chancellor, Sir Thomas More, might have chosen between the sword and the axe.
For this further round of alleged “consultation”, he does not even ask our views on the 30% cuts, puts his fingers in his ears and shouts “la, la, la.” We say: “don’t do this, we will find other routes to save you the £24 million cuts you say you need”; “La, la, la” he assures us no matter what we might say, he will proceed with the cuts anyway. This is not a consultation with the Criminal Bar at all.
So what is our CONSULTATION?
The CBA Consultation seeks to confirm the mood and intention of the criminal bar.
Which of the 4 “A”’s do you favour?
“A” for “acceptance” – regard the cuts as a foregone conclusion and say nothing.
 “A” for “acquiescence” – shout a lot, protest and then do nothing.
“A” for “apathy” – believe that others will do something about it but personally too busy to get involved
 “A” for “action” – not accept the cuts. Stand up and be counted.
Based on all of the soundings of last year, I predict that Action is the A you will go for.
To that end you know I have written a letter to each Head or Heads of Chambers to determine this mood and intention. As the letter was personal to them I will not reproduce it, however I trust every member will ensure that their Head has shown it to them and that they in turn have provided their Head with feedback.
As not every member of the C.B.A. practices from Chambers, the two questions asked are designed to discover:
a.      What percentage of your members would be prepared to take direct lawful action, if the fee cuts are introduced?
b.      What percentage would refuse to work at the proposed VHCC rates?
Please ensure you make your views known both through Heads of Chambers and our dedicated email account created for the purpose to consider your responses.
That email address is [email protected]
Name of case.
When you signed the contract.
When it is due for trial.
REPLY TO: [email protected]
Part of our Consultation is to determine, so far as we are able, what the legal position you as individuals and indeed the CBA are in with regard to the response to these questions. Here again, we are being provided advice from eminent silks in their fields and value their willingness to assist us pro bono.
We are working here to tight deadlines.
Based on the outcome of our consultation, we will make recommendations and indeed tell you what we will be doing as individuals.  The decisions you take will be yours.
The advice may differ in relation to VHCC contracts and Grad Fee work.
We will also have to consider what actions might be subject to discipline from our unsympathetic regulators.
Unity between the Bar and Solicitors achieved the reversal of PCT. The Lord Chancellor was made to see it would not work. We expect nothing less than complete backing from the solicitors’ profession in word and deed to ensure NOT A PENNY MORE in cuts. These will affect many of their own number, not just the Bar. We expect a proper fee for the work we do. If briefs are returned or not undertaken by members of the Bar, we expect that they will not be picked up by solicitors. We expect that they will honour the pledge made many months ago to support the Bar wholeheartedly.
I have to say I have heard once or twice the observation “cuts are inevitable”. I am appalled that some might be prepared to see our fellow lawyers go under without a fight.  Defending against injustice is what we pledge to do.
It is on this basis that I have agreed to speak on Tuesday night at the:

Justice: Closing Down Sale – Everything must go !
Tuesday 1st October 2013 – 18.15 – Presented by: LCCSA
The campaign against proposed Legal Aid cuts and reforms continue.
Solicitors and Barristers are invited to a meeting to discuss the MoJ’s latest consultation “Transforming Legal Aid: Next Steps”
Panel Speakers Include:-
Des Hudson – The Law Society
Greg Powell – LCCSA
Bill Waddington – CLSA
Nigel Lithman QC – CBA
Carol Storer OBE – LAPG
Entrance to the event at the Camden Centre (opposite St Pancras Station) is by ticket only via the entrance on Euston Road. Tickets will be collected and scanned. There will be no requirement to sign a CPD register but if your ticket is not collected or scanned you will be unable to claim your 2 CPD points. You should be able to print your ticket from the link at the bottom of this email.  
To book your ticket please click HERE

As with many men of my age I show a morbid interest in the Obituary Columns, mostly to see if my name appears.
This week in our obituary columns, I received the following notices:
a.      2 members leaving the criminal bar are “ fortunate enough” to find work in regulatory tribunals.
b.      1 member who left on maternity leave has decided she cannot afford to return.
c.       The Probation Service is being racked and ravaged. Poor judgment only interested in saving money is costing the ministry more.
d.      The judgment of Holman J. is better.
1.        This is an ex tempore judgment given in public after a hearing which I have conducted entirely in public. 
2.   The circumstances in which I am considering this case could hardly be more unsatisfactory.  The context is a petition for divorce presented here in Birmingham by a wife. She herself resides in Pakistan and appears currently to be unable to visit this country.  She has previously been represented by solicitors, but can no longer afford the cost of doing so.  I have been told on the telephone this morning by the solicitor concerned that legal aid or public funding is not available to her. 
3.   The context of the case is far from straightforward, so I am left to do the best I can with only the respondent husband present, in person, before me today (assisted an interpreter), and informed by such material as is available to me from Pakistan. 
4.   Yesterday, 18 June 2013, Lord Neuberger of Abbotsbury, the President of the Supreme Court, gave a public lecture, which is now publicly available, headed:  “Judges and Policy:  A Delicate Balance”.  In that lecture he pointed out some of the considerable risks and consequences which may flow, and indeed are already flowing, from reductions in the availability of legal aid.
5.   At paragraph 27 he said: “… It is vital for the Ministry [of Justice] to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are likely to have a knock-on effect on the cost of the courts.  Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge time …”
6.   Generally, the material part of the lecture emphasises the risks to justice and the rule of law of an erosion of public funding for the provision of legal services where required. 
7.   Lord Neuberger did, however, also say at paragraph 23 of his lecture:  “There is a fundamental public duty on the government, and also on the legal profession and the judiciary, to work constructively together with a view to best maintaining access to justice in the face of the harsh realities of government finances.  Lawyers and judges have a duty to help make the system work, as well as warning of the risks of cuts.”
8.   In the present case, until recently, I would have expected to have had the assistance of experienced lawyers on each side and almost certainly expert evidence in relation to the proceedings in Pakistan which I will shortly describe.  As it is, I have no legal representation and no expert evidence of any kind.  I do not even have such basic materials as an orderly bundle of the relevant documents;   a chronology;  case summaries, and still less, any kind of skeleton argument.  Instead, I have had to rummage through the admittedly slim court file, supplemented by various documents handed up to me by the respondent husband today and some material sent by the petitioner wife from Pakistan. 
9.   I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than “rough justice”. 
Full Judgment Here
e.      Tooks Court says “goodbye”.
Many years ago I prosecuted Mike Mansfield QC (professionally not personally).
Mike is a legend in his own lifetime and those chambers were a vital part of the rich and varied landscape of the English Justice System, frequently championing the interests of those less fortunate in society. To be driven under by the state of legal aid – & even before any further cuts – is nothing short of criminal.
How many more sets of chambers will go under? Will our chambers rent, overheads, professional indemnity insurance, rail fares drop by 30% or even 17.5%? Will our mortgagors or the utility companies accept reduced payments? The idea is laughable. It is only us who are for some reason the target.
Where the state of legal aid forces people out, let us know. We will pass on the news to the MOJ. Sadly I know his response will be “very sorry, but the profession needs to contract anyway.” When the finest of our chambers go “to the wall” and experienced practitioners are forced out, when will he wake up to the devastation that saving £24 million in his budget will cause to the justice system as a whole? And if he truly must save that sum, why not listen to our genuine proposals as to how it may be saved?
As I attend more meetings, I have a horrible notion. The CBA is viewed in some quarters as the bad boys of the Criminal Bar.
May I ask all Judges, Parliamentarians, Law Officers to note, the CBA has not changed in make up one jot since you were members. We are in the main part non political.
It is just that criminal barristers, not prepared to sit quietly by and watch all of this going down the pan, have chosen the CBA as their voice.
@TheCriminalBar: THIS is why @MoJGovUK should be stopped from removing #legalaid from prison law cases
@TheCriminalBar: A devastating critique by Holman J of the dire consequences of cutting #legalaid @MoJGovUK
@TheCriminalBar: LSB director warned BSB against approving QASA  “risk to judicial independence from judicial evaluation.”
@TheCriminalBar: Just read para 18 of this document from @MoJGovUK and tell us your views on taking action to #saveukjustice

Nigel Lithman QC

View more news