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Unpaid fees? Give some thought to your contractual status and when to use the ‘nuclear option’, writes Adrian Vincent
Are you, like most barristers, someone who focuses so much on the legal issues in your cases, that you give little headspace to your personal contractual status? Here is the sort of call that I often receive at the Bar Council:
Barrister: ‘My solicitor hasn’t paid me, what can I do?’
Me: ‘Is it a privately funded, or a legal aid case?’
Barrister: ‘Privately funded’
Me: ‘Did you use contractual terms?’
Barrister: ‘Er... I think the usual terms...barristers
don’t tend to have contracts.’
Me: ‘What is your chambers?’
Barrister: [tells me]
Me: ‘Your chambers’ website states that your instructions
are accepted on the basis of the Bar Council’s Standard Contractual Terms. You
have therefore complied with your code of conduct duty under rC22.1 of the BSB
Handbook, and your legal duty under the Provision of Services Regulations 2009,
to publish your normal terms of engagement. You did have contractual terms. You
can sue for your fees under those terms.’
Once you have established your legal entitlement to sue for your fees, you should reflect whether you should use this ‘nuclear option’. It does not make for good business to regularly sue those who provide you with work. Your clerks are there to help you to maintain good relationships with your instructing solicitors, so that such a crisis point is never reached.
The Bar Council provides details of a Debt Recovery Panel of firms who can, for a fee, chase your debts, taking legal action where necessary. When a solicitor is informed that a barrister intends to legally enforce the contract and that, on obtaining the judgment, will provide a copy of the judgment to the Bar Council to place the firm on the published Advisory List of Defaulting Solicitors, payment often follows without legal action having to be commenced.
In criminal legal aid cases, if it is a crown court case, the barrister bills the Legal Aid Agency (LAA) direct, and so non-payment by the solicitor does not apply. In magistrates’ court cases, the barrister bills the solicitor, and the solicitor pays the barrister as a disbursement of the solicitor’s legal aid fee. With ‘good’ solicitor firms, this is not a problem. With ‘bad’ solicitor firms, late payment or no payment has been a perennial problem. The Bar Council has worked with the London Criminal Courts Solicitors’ Association (LCCSA) to produce a revised Magistrates’ Court Protocol under which the barrister commits to providing the detailed information necessary for the solicitor to claim the correct fee, and the solicitor commits to paying the barrister within 30 days of invoice.
In family and civil legal aid, most payment problems can be avoided by ongoing communication. For example, before accepting a case, one must insist on receiving a copy of the legal aid certificate. That will avoid the frequent situation where a barrister does a case only to find that legal aid was not actually in place, or that it was in place but the work subsequently done exceeded the cost limit on the certificate. There is no need to feel embarrassed insisting on a copy of the certificate before accepting the case; it is not implying a lack of trust, it is solely acting in a professional manner.
Here are some sample FAQs from the Bar Council’s recently published Remuneration related Ethics and Practice FAQs :
Q) I’m a junior barrister in chambers and a solicitor has not paid me for the legal aid magistrates’ court work I did. I want to sue the solicitor, or at least for chambers to take firm action to get my money, but senior figures in chambers have said that because the solicitor gives chambers a lot of important crown court cases for more senior members of chambers, my fees will not be chased. What can I do?
A) The most junior members of chambers are in a vulnerable situation and you should seek support by consulting your chambers’ Equality and Diversity Officer. If chambers are failing to ensure payment for junior members in order to maintain a flow of work for more senior members, the chambers is likely to be in breach of rC110.3.i that chambers affairs ‘are conducted in a manner which is fair and equitable for all members of chambers’. All members of chambers are responsible for ensuring that this happens, and your E&D Officer can raise this issue within chambers to bring about a change of culture and policy.
Chambers should proactively chase the fees and can remind solicitors of their contract with the Legal Aid Agency, Clause 3.3b of the 2017 Standard Crime Contract: Standard Terms, that with regard to payments to third parties ‘(i) all payments are made to them for their work within 30 days from receipt of a valid invoice’. The solicitor can therefore be warned that if they do not pay the fees agreed to the barrister, the barrister may report the matter to the LAA that the solicitor is in breach of the contract.
Q) The Legal Aid Agency are seeking to recoup from me fees that they paid me 10 years ago. These fees were either payments on account, or an alleged overpayment. Do I have to return the money?
A) [...] This may be a situation whereby you received payments on account during the case, and then the solicitor, who is responsible for submitting the final bill to the LAA failed to submit the final bill. You should engage with the LAA official who contacted you regarding the recoupment. Often the approach will work whereby you ask the LAA to treat the payments on account received, as if they were the final bill, and close the case and consequently no recoupment is made. [...] In some cases, a barrister will have received an overpayment, i.e. the payments on account, then the final bill was submitted and the LAA paid the final bill and in error failed to deduct the payments on account [...]. Where you did receive an overpayment, you should return the element of overpayment. Sometimes the LAA computer system indicates an overpayment, but on further investigation turns out not to have been so. You are therefore entitled to ask the LAA for the evidence that it was indeed an overpayment.
Q) I was instructed in a legal aid case. The solicitor told me that legal aid had been granted and they would send me a copy of the legal aid certificate, but they failed to do so. I am half way through the case and now find out that no legal aid is in place. Can I withdraw?
A) No. There is no provision under the BSB Handbook to withdraw in this situation, leaving the lay client without representation. You may seek a privately funded fee from the solicitor given that there is no legal aid in place.
Adrian Vincent has worked for the Bar Council for 12 years. He is the Head of Policy for Legal Practice & Remuneration. This includes being the Executive of the Bar Council’s Remuneration Committee.
Are you, like most barristers, someone who focuses so much on the legal issues in your cases, that you give little headspace to your personal contractual status? Here is the sort of call that I often receive at the Bar Council:
Barrister: ‘My solicitor hasn’t paid me, what can I do?’
Me: ‘Is it a privately funded, or a legal aid case?’
Barrister: ‘Privately funded’
Me: ‘Did you use contractual terms?’
Barrister: ‘Er... I think the usual terms...barristers
don’t tend to have contracts.’
Me: ‘What is your chambers?’
Barrister: [tells me]
Me: ‘Your chambers’ website states that your instructions
are accepted on the basis of the Bar Council’s Standard Contractual Terms. You
have therefore complied with your code of conduct duty under rC22.1 of the BSB
Handbook, and your legal duty under the Provision of Services Regulations 2009,
to publish your normal terms of engagement. You did have contractual terms. You
can sue for your fees under those terms.’
Once you have established your legal entitlement to sue for your fees, you should reflect whether you should use this ‘nuclear option’. It does not make for good business to regularly sue those who provide you with work. Your clerks are there to help you to maintain good relationships with your instructing solicitors, so that such a crisis point is never reached.
The Bar Council provides details of a Debt Recovery Panel of firms who can, for a fee, chase your debts, taking legal action where necessary. When a solicitor is informed that a barrister intends to legally enforce the contract and that, on obtaining the judgment, will provide a copy of the judgment to the Bar Council to place the firm on the published Advisory List of Defaulting Solicitors, payment often follows without legal action having to be commenced.
In criminal legal aid cases, if it is a crown court case, the barrister bills the Legal Aid Agency (LAA) direct, and so non-payment by the solicitor does not apply. In magistrates’ court cases, the barrister bills the solicitor, and the solicitor pays the barrister as a disbursement of the solicitor’s legal aid fee. With ‘good’ solicitor firms, this is not a problem. With ‘bad’ solicitor firms, late payment or no payment has been a perennial problem. The Bar Council has worked with the London Criminal Courts Solicitors’ Association (LCCSA) to produce a revised Magistrates’ Court Protocol under which the barrister commits to providing the detailed information necessary for the solicitor to claim the correct fee, and the solicitor commits to paying the barrister within 30 days of invoice.
In family and civil legal aid, most payment problems can be avoided by ongoing communication. For example, before accepting a case, one must insist on receiving a copy of the legal aid certificate. That will avoid the frequent situation where a barrister does a case only to find that legal aid was not actually in place, or that it was in place but the work subsequently done exceeded the cost limit on the certificate. There is no need to feel embarrassed insisting on a copy of the certificate before accepting the case; it is not implying a lack of trust, it is solely acting in a professional manner.
Here are some sample FAQs from the Bar Council’s recently published Remuneration related Ethics and Practice FAQs :
Q) I’m a junior barrister in chambers and a solicitor has not paid me for the legal aid magistrates’ court work I did. I want to sue the solicitor, or at least for chambers to take firm action to get my money, but senior figures in chambers have said that because the solicitor gives chambers a lot of important crown court cases for more senior members of chambers, my fees will not be chased. What can I do?
A) The most junior members of chambers are in a vulnerable situation and you should seek support by consulting your chambers’ Equality and Diversity Officer. If chambers are failing to ensure payment for junior members in order to maintain a flow of work for more senior members, the chambers is likely to be in breach of rC110.3.i that chambers affairs ‘are conducted in a manner which is fair and equitable for all members of chambers’. All members of chambers are responsible for ensuring that this happens, and your E&D Officer can raise this issue within chambers to bring about a change of culture and policy.
Chambers should proactively chase the fees and can remind solicitors of their contract with the Legal Aid Agency, Clause 3.3b of the 2017 Standard Crime Contract: Standard Terms, that with regard to payments to third parties ‘(i) all payments are made to them for their work within 30 days from receipt of a valid invoice’. The solicitor can therefore be warned that if they do not pay the fees agreed to the barrister, the barrister may report the matter to the LAA that the solicitor is in breach of the contract.
Q) The Legal Aid Agency are seeking to recoup from me fees that they paid me 10 years ago. These fees were either payments on account, or an alleged overpayment. Do I have to return the money?
A) [...] This may be a situation whereby you received payments on account during the case, and then the solicitor, who is responsible for submitting the final bill to the LAA failed to submit the final bill. You should engage with the LAA official who contacted you regarding the recoupment. Often the approach will work whereby you ask the LAA to treat the payments on account received, as if they were the final bill, and close the case and consequently no recoupment is made. [...] In some cases, a barrister will have received an overpayment, i.e. the payments on account, then the final bill was submitted and the LAA paid the final bill and in error failed to deduct the payments on account [...]. Where you did receive an overpayment, you should return the element of overpayment. Sometimes the LAA computer system indicates an overpayment, but on further investigation turns out not to have been so. You are therefore entitled to ask the LAA for the evidence that it was indeed an overpayment.
Q) I was instructed in a legal aid case. The solicitor told me that legal aid had been granted and they would send me a copy of the legal aid certificate, but they failed to do so. I am half way through the case and now find out that no legal aid is in place. Can I withdraw?
A) No. There is no provision under the BSB Handbook to withdraw in this situation, leaving the lay client without representation. You may seek a privately funded fee from the solicitor given that there is no legal aid in place.
Unpaid fees? Give some thought to your contractual status and when to use the ‘nuclear option’, writes Adrian Vincent
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