You can’t have your cake OR eat it…but the cake is the same size as it always was

It wasn’t a good start. They concluded the presentation ten minutes before the advertised start time meaning that I missed it even though I was early. That was the second session and I had missed the first part entirely as I had been stuck at court on just the kind of case that will be in future be paid less than £200 (before expenses) for a hard day’s slog (10 hrs incl prep & travel) and nothing to show for it but a twix for lunch on the way back to the car.

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As far as therapeutic rants go I had a good bash at it, but it was not terribly satisfying. Every whinge resulted in one of a limited number of responses centreing on the assertion that no less money was being spent on advocacy overall under the new proposals (although the LSC representative on our table candidly admitted being completely unable to understand or explain the figures which formed the basis of the calculations – like the rest of us there then), that he was just here to put the proposals to us and to find out from us how we would like to divide the ‘limited advocacy cake’, that he would feed back our concerns. It was about as therapeutic as banging my head against a wall but with less observable result. Our LSC facilitator wrote notes on his feedback sheet, over-condensing and over-summarising and selecting the easy bits of our heated debate into bite sized morsels of one or two words that will be utterly meaningless even if they are not completely ignored by whoever is tasked with compiling or digesting them.

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As far as it goes, if this was intended to be an exercise in attempting to get the bar and solicitors to fight like children over the last slice of birthday cake we all behaved very well, pointing out that the fat kid under the table had been allowed to take a whole big slice all to himself and the LSC had not even noticed or tried to get it back off him (exorbitant experts fees which the LSC acknowledge are a big source of overspend but inexplicably do not form part of the current proposals could be redistributed into advocacy). All the solicitors on my table agreed that the fees proposed to be paid for advocacy were an insult and simply inadequate (as one rightly pointed out in some cases less than £10 p/h for prep). They all also agreed that they could not and would not want to do all advocacy in house.

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Unsurprisingly Mr Facilitator confirmed that the feedback on the proposals had been universally negative and views very strongly felt. In particular the ‘one size fits all’ approach had been much criticised.

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Well, I’ve said my piece. I told the man from the LSC I’ll be off if this carries on. The blithe response was that that was okay, because the LSC didn’t really much mind if some family barristers gave up practising as they were pretty confident that some of us would still be too desperate to do it (I paraphrase, but not much). I protested the folly of this line of thinking along with others on my table but I might as well have been talking to a piece of actual cake (looks nice, no good at making decisions). I don’t have the energy to rehearse the reasons why the interests of justice are not served by this – I expended a good deal of energy on articulating it this afternoon only to see it reduced to a scrawled ‘barristers will leave’ on the feedback sheet. What a pile of CAKE.

One thing that is definitely not up for discussion is whether or not the proposals will adversely affect the family bar – that much is evidently a brute fact. I am beginning to think that the effect on the family bar is not the side effect but the point of the exercise, and that the crude rationale for these reforms is that since (from the LSC’s perspective) the family bar always find a way to burn a hole in the LSC’s pocket it would be cheaper to just do away with them altogether. But at what wider cost? If the long term effect for families wouldn’t be so god awful it would almost be worth just sitting back and watching them work it out for themselves. So I will continue to do my bit to make them see sense…I will be filling in my consultation response very shortly.

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See my previous posts about the funding reforms here.

7 thoughts on “You can’t have your cake OR eat it…but the cake is the same size as it always was

  1. Astonishing…. we are seeing a slow but inevitable march away from experienced barristers and solicitors to the lowest common denominator.

    Could it be that the present government are relying on the credit crunch to ‘persuade’ the independent bar to accede in this and criminal cases?

  2. “exorbitant experts fees which the LSC acknowledge are a big source of overspend but inexplicably do not form part of the current proposals could be redistributed into advocacy”.

    Don’t know about that. As far as Independent Social Workers are concerned the LSC proposals are that their fee rate be set at the same rate CAFCASS pay their Self Employed FCA/Guardian contractors. That deliberately uneconomic fee rate has succeeded in hugely diminishing the once flourishing body of highly experienced and fully independent professionals available to safeguard the interests of children before the courts. I guess the LSC just don’t like kids.

    • I wasn’t really thinking about ISWs who I know are already on the LSC’s hit list and who tend to charge reasonable fees. More about psychologists or psychiatrists whose costs vary wildly but in my experience who will often charge as much as £15,000 depending on what is done.

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  4. I went ot a similar session – but concerning the new contract for solicitors. Sir Brian Callaghan – the new chair of the LSC was there. He spoke to me over coffee and was blathering on about “harmonisation”. Took me a few minutes to realise he meant harmonisation between solicitors and barristers.

    His rationale was that the LSC buys 10% of the legal advice and representation in the country so they ought to have a say as to how the land lies. So you are correct in your assumption as to what lies behind the fees.

    From a solicitors perspective I am troubled by the fact that the figures are based on past work but this takes no account of having to run most cases in front of magistrates, new practice directions on bundles and domestic violence and the fact that opponents are more likely now to be in person. all this will add to the time we spend preparing but not alas to the amount we earn.

    I am resigned to doing an ok job rather than going the extra mile – anyway people are used to declining standards…

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