Dear Colleague and Member,
I have been asked by many sources to address the revised terms and conditions introduced by the Bar Council on 31 January 2013. I wanted to update you on my discussions with most, not all, of the chambers in Bristol about the revised standard terms and conditions.
Several interesting points have arisen. It was believed by many of the sets that the new terms and conditions were introduced following lengthy consultation with the Law Society and/or SRA. That subsequently does not appear to be the case and the Law Society have introduced a practice note on the subject.
There has clearly been a breakdown in communication between both professions and the feeling appears to be that this has been pushed through by the Bar Council without much thought as to the consequences.
Many senior clerks and chief executives are unhappy with how this has been implemented, especially as their professional indemnity insurer – Bar Mutual – has indicated that if the revised terms and conditions are not adopted then there may be consequences for their indemnity insurance. Both Counsel and Chambers are therefore in a difficult position and feel compelled to adopt the terms and conditions, albeit perhaps with slight variation in some instances.
For instructing solicitors, the main objection appears to be the concern that Counsel may now sue and claim interest. The standard terms also provide for 30 days.
The overwhelming response from the sets that I have spoken to, is that nothing will change. Counsel are very unlikely to sue for an unpaid fee note, equally it is unlikely to charge interest; however, it welcomes the power to do so. In practical terms, many will retain the 30 day payment term – some and certain practice groups are proposing 60 days as their standard. Each set of chambers will be different and their terms should be clarified on instruction.
The chambers in Bristol are acutely aware that we are in a relationship arrangement and many of us have good relationships with the sets that we instruct. I am reassured that chambers will explore every avenue before enforcing an outstanding fee note. They are aware that to do so, may jeopardise future instructions not just for counsel, but for chambers as a whole. Nevertheless, they cannot rule it out of all contention.
As instructing solicitors, we need to clarify with chambers what their standard terms and conditions are; and if we seek to vary those terms then it is of course a matter for counsel to accept or decline those changes. However, as a profession we must ensure (and I know many of us already do) that we communicate regularly with chambers, especially if we are having difficulty in securing payment from our clients. Chambers will be sympathetic to poor paying clients – we just need to keep them in the loop.
In summary, I am told not to worry, counsel wish to retain the close relationships that they enjoy with their instructing solicitors. They are unlikely to invoke their new powers. They merely ask that we keep them informed especially if there is likely to be a delay with payment.
No doubt further guidance will be issued by The Law Society following their own discussions with The Bar Council.
Sarah Mumford of Bevan Brittan has asked us to point out that the COMBAR terms are an useful variation. These have been recently varied in February and can be found here