Bar Council publishes proposed new terms of engagement for barristers

The Bar Council has launched a consultation on modernising terms of instruction from solicitors, claiming that the current basis is viewed as “outdated and unsatisfactory”.

It said new terms drawn up by the Bar Council’s implementation committee are intended to be transparent and enforceable, and “to provide more protection to barristers (particularly  young barristers) in countering unacceptable delays in payments”.

The Bar Council added that the move to adopt enforceable contract terms was consistent with the liberalisation of the legal services market and its own modernisation agenda.

The existing system sees barristers take instructions under the Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 (as amended).

This has been criticised for a lack of clarity in relation to barristers and solicitors’ obligations to each other and to the lay client, as well as the absence of an effective method of enforcement of those obligations.
Under the implementation committee’s proposals, the Terms of Work will be amended and the Withdrawal of Credit Scheme abolished.

The Bar Council said: “Whilst barristers and solicitors will continue to be free to agree any new terms, it is envisaged that these new contractual terms will be used wherever alternative terms have not been agreed. The new terms would apply only to privately-funded matters or where the solicitors would pay counsel direct.”

A List of Defaulting Solicitors will apply not only to solicitors who default on payment of privately-funded matters but also to those who fail to carry out their obligations to ensure barristers are paid for publicly-funded matters.

Sarah Asplin QC, chairman of the implementation committee, said: “The present system is outdated and is a barrier to entry to the Bar for those from less advantaged backgrounds who can ill afford unacceptable delays in payment and write off significant amounts of fees due to lack of an effective enforcement process.

“It is in the interest of all involved in the administration of justice that the terms on which barristers are instructed by solicitors are transparent and enforceable.”

The closing date for responses is 31 July 2010.