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Monday Message 30.12.13

CBA Chairman’s Update:
Nigel Lithman QC

Monday Message 30 December 2013


Personal Email: [email protected]

So there it is, a blink of the eye and the first third of my tenure is over. What have I learned? Without sounding smug, nothing. The first rule of human behaviour applies to our struggle as much as to any other. The only thing that will achieve what we desire is selfless behaviour. Don’t ask yourself, tempting as it may be, “how can I do that case?” or “how can I squeeze myself into the old regime of payment?”, but be determined instead, “I said I won’t work at new rates and however you disguise it, I won’t”. This is a concept that two groups understand better than anyone: the young Bar and the Government. They both understand that if the Criminal Bar remains united in its determination not do the VHCCs and then the AGFs at new rates, the government will be unable to “steam-roller” its’ proposals through without seriously damaging the fabric and future of our criminal justice system.
I truly believe that the CBA, with its wealth of talent, can then move away from what ultimately is a worthless distraction and revert to being a vibrant and powerful force that will work hand in hand with judiciary and government in ensuring an efficient, pragmatic and just system of criminal law in place to meet the needs of the 21st Century.
There are two matters for me to raise now.
The government’s confidence that it would find experienced advocates willing to undertake VHCCs at 30% less than previously paid was misplaced. By standing firm and as a united profession on this issue, we have shown our collective strength. In response, the LAA have been rattled into offering to declassify some of the VHCCs and as if by some miracle, turn them into Grad fee cases. They think that offering a tit bit here and there might get them out of the mess that they have made for themselves. Declassification is one such tit bit.
It raises the following issues:

  1. We doubt the LAA have acted lawfully in changing the status of these cases. We also query the propriety of these same cases being offered to solicitors firms as VHCCs and the Bar as Grad fees. We will take advice on these matters in the new year.
  2. These cases if done as Grad fees will almost certainly pay even less than the newly reduced rate VHCCs. Why would anyone do the same demanding work for lower payment just because of an artificial name change?
  3. These cases may come from members of the Bar who have already rejected them.
  4. Remember this is being done so the government can introduce new rates by stealth.

This battle is being fought now. What you do here and now will determine its outcome. The fate of the Criminal Bar will be determined in the next 4 months. If you buy into this scheme then we will not win this battle.
Very few lists in history have not been created for purposes of infamy. The new “fat cat list” is on its way. Just in time for the protest on the 6th January. Notwithstanding the new Minister of State for Justice, Lord Faulks, decrying them as opaque and misleading, the top earners are again being asked for their responses to publication. May we all adopt the letter I’ve received from an eminent silk, pointing out inter alia the following:

  1. Not only do much of these gross earnings arise from previous years but the total figure also includes substantial payments made by him to another silk for his part in the same case.
  2. As that other silk’s earnings also appear on the list, this is reckless double accounting.
  3. Why should he and his family be exposed to robbers and fraudsters, through the publication of this personal information?
  4. Who is it that loathes us so much as a profession that we are singled out from amongst all other public sector professionals by publishing the gross earnings of the top 20 of our members year on year? Do they name the 20 top earning surgeons?  

Our profession cannot run on 20 barristers alone, however well paid. In fact it runs on 5000, with 60% earning at most £37000 gross, before overheads & tax, and that figure is pre cuts. I would like to compile a thin cat list of our own. If 20 of you in full time self employed work at the Bar are prepared to divulge to me and my administrator your earnings and they are less than £25000 gross pa, then with your agreement it might be published as our list.  Of course anonymity will be guaranteed. Please reply to:[email protected]
Have a wonderful New Year. Make “selfless” your resolution. Of course it’s up to you. If you do, you strengthen our bargaining power in resisting even a penny more in cuts. If you don’t, the last legal aid barrister leaving court, take down the sign so often over a Judge’s bench and turn out the light.
Nigel Lithman QC

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