I’ve changed my out of office three times in the last couple of weeks.

One change to say I was so busy that I might take some time to respond (this one offended someone who wasn’t as busy and who presumably thought I was just being a show off and rubbing their nose in it)

One change to say I was wearing another hat for a little while and wouldn’t be looking specifically at chambers emails for a bit

One more to politely explain to the people who seem to think that by some alchemy the combination of the words URGENT and INJUSTICE and CORRUPTION or BIAS will magically produce free and instantaneous legal advice based upon a long stream of consciousness email without so much as an eyelash at any papers – that in fact such enquiries need to go via my clerks, and anyway I’m too busy to take on such cases. This latter change was prompted by someone who read the first OOO and took it as a sign that they should simply send a second email, this time sprinkling in a few more of the magic words in, insisting it really was so urgent that it practically required them to ignore my OOO. NB If you do this sort of thing you are, in my book, not a suitable candidate for direct instruction of a barrister in any event because you lack boundaries.

I also had to block a former client for the first time this week, after an unexpected Whatsapp call at 8.30pm.

So, I’m sorry if it offends anyone, but I’m not going to apologise for being busy and I’m doubling down on the OOO for my own sanity.

People who feel entitled to our time and expertise because of how special their case is or how important their issue is invariably never mention payment. That includes genuinely desperate parents who feel they have nowhere else to turn, and it includes professionals who should know better (like the journalist from a major broadcast organisation who cold called for a ‘quick chat’ recently and didn’t seem to understand that barristers don’t and can’t give legal advice about specific cases without a) proper instructions b) seeing some papers c) payment (even after I had spelled out the limitations of what I could say in the course of a cold call). I do work for free, but I am far more likely to be offer to work for free in response to an enquiry that acknowledges an inability to pay, which provides a simple explanation of the problem, and which is presented as a request rather than a demand.

I get a lot of these emails and calls, many of them the result of the limitations on legal aid, or long running proceedings that have exhausted people’s funds – and I do try to respond, to say I’m sorry but I’m already committed on that date, I can’t give legal advice by email or by phone (as applicable) etc… I try to signpost, to give general information when I can, to explain how legal aid works when KCs are involved – and very, very occasionally I accept an instruction. I do all this rather than just letting the clerks deal with it because I know that each person that contacts me is in pain and that they are often confused and alone. But there is a significant rump of enquiries that are not just unsolicited, but which are also entitled, often over-confident in their own assertion of obvious injustice, which disclose a significant history of simply refusing to accept the outcome of a decisions and actions long past, and which are expecting something for free and demanding it now. And who keep on sending more and more emails in the hope I will relent. Or who get cross with me when I politely explain it doesn’t work that way.

To those people: I know you found me on the internet and you think I am just the person to help – the only person who can help (this is what you always say but you often forward me copies of emails you have sent to lots of other people beforehand) – but newsflash: I am not a superhero. I’m a mum with a family, and a job, and with clients who I have commitments to that have deadlines and standards. I don’t have a time machine or magic wand. I’m just one lawyer. And although my job is a vocation for me, it is also the way I pay my mortgage. And if you are unable to respect my boundaries and bombard me with long emails then I will almost certainly not accept you as a direct access client even if I have capacity*.

It sometimes feels as if the more of yourself you give for free (to charities, to committees, to pro bono legal advice and representation), and the harder you work – the more people demand and expect of you. It’s really, really hard to maintain boundaries in this job at the best of times, and a bit of self protection is sometimes essential. An OOO is a pretty flimsy protection, but sometimes its all we have.

Of course barristers are famously always wanging on about how busy they are even if they aren’t, and it feels a bit stroppy and puffed up to even be complaining about all this. But the truth is a lot of us are perpetually struggling to keep up most of the time, because barrister’s diaries are very difficult to keep in balance. And I don’t think we should discourage people from saying ‘Woah. I have a lot on. I’m drawing a line’. Personally, I’ve had a belly full of being grumbled at this month. In court, out of court, by people I know, by people who should know better, by people I have never met, from people I have tried to help and people who just expect me to drop everything and solve their problem. So: take my word for it, there is a good reason for my OOO. And it isn’t always just about your feelings. It’s also about my boundaries.

Top tip: if you don’t like my OOO, you can always stop emailing me.

*(for the avoidance of doubt the cab rank rule doesn’t apply to this sort of work, and in my judgment it only compatible with practice at the bar and the level of service I like to provide for a small proportion of cases / clients. I am selective about direct access clients for my own sake and theirs. The vast majority of the people who contact me would be better served by instructing of a solicitor in the first instance, and if that solicitor then wishes to instruct me the cab rank rule applies and I follow it scrupulously).

I came across an article in the Gazette this week with the headline:

Judge issues pre-trial legal aid plea after mother left alone

The article refers to this judgment of DJ Keating: London Borough of Sutton v A mother & Anor [2025] EWFC 147 (B) (bonus points to the Gazette for linking to it).

The judgment is a final decision in care proceedings, and the first 97 paragraphs are the main decision and conclusion (the child was to remain living with extended family due to deficiencies in the mother’s parenting). The article isn’t about those, but is about the last 3 paragraphs, appearing under the heading ‘other matters’. They are so short I’ll repeat them in full:

Other matters

98. I was told that M did not have the benefit of a conference with counsel to help prepare for what was a 4 day long contested final hearing.  I am told that was because her lawyers had asked the legal aid agency to pay for 3 conferences, two of which took place at Court at an early stage of the proceedings, and a third when the local authority changed its care plan, a further conference could not be arranged without prior authority from the legal aid agency.  I do not know why that authority was not sought.  Having that proper ability to discuss the case would have made the process easier for M, who is a vulnerable person.  M told me that she had not seen the letters sent by GM and by G & H in August 2024, which were in my bundle, and so she had to be given time when in the witness box to read them.  That must have been hard for her.  She did not ask for a break at those times, and nor did her barrister or intermediary, and I was watching carefully for a clue that she might need one.  I am worried that the absence of a conference with her advocate, has not helped M prepare for the trial as well as she might have done.

99. To the extent that it assists lawyers, I believe that a parent who is contesting a care order application and seeking the return of a child to their care at a multi-day hearing normally should be afforded the opportunity to meet in conference with their trial advocate after the evidence is complete and before the trial begins.  I hope that the legal aid agency would be willing to consider applications for authority for such a conference.  Where a parent is a vulnerable witness, that has all the more force, in my view.

100. I propose to publish an anonymised version of this judgment.  Before doing so I will invite counsel to comment on a draft version to ensure that there is no risk that Rosie or her family can be identified.

I’m really confused by this. By what it’s trying to do and by what it is trying to describe.

Two conferences with counsel is the standard allowance per case and it is difficult and usually futile in my experience to try and get the LAA to pay for more. But conferences at court don’t count as conferences at all, and can’t be claimed as such. They are just part of the court day, which may or may not be captured in the fee paid by virtue of the parties being ordered to attend early for such a discussion. So having two conferences at court shouldn’t exhaust the 2 conference allowance. [Important correction, this rule only applies to final hearings – thank you to Jacob Gifford-Head for correcting me – see 7.140-7.141 here].

The mother had an intermediary. Maybe the problem was getting funding for a meeting with the intermediary outside court – but if so I’m not sure why the 2 conference rule would apply. And there is nothing in the judge’s wording that suggests the problem is with payment for an intermediary.  Nor is there any reference to the recent case of Re M (Intermediaries) in which the Court of Appeal made clear that conferences away from the court might legitimately be supported by an intermediary, but on a case by case basis, and upon application to the court (rather than simply the LAA as appears to have happened here).

“… the experience of a vulnerable person in a solicitor’s office, where matters can proceed at their own pace, is likely to be different from their experience of a more formal courtroom setting, and what is necessary in one setting may be unnecessary in the other”

Next, let’s suppose that for good or bad reasons no conference with counsel could be arranged [update – as per correction above this seems more likely to be applicable due to exhaustion of the 2 conferences] – isn’t it still the solicitor’s job to make sure that the client has been taken through or told about relevant materials, in a manner consistent with their ability and vulnerability? (that’s rhetorical, it is absolutely their job). That task doesn’t actually require counsel at all, though it is sometimes desirable to involve trial counsel for the purposes of clarifying instructions and agreeing an appropriate approach to the trial.

In any event, the brutal reality is that counsel are often instructed too late to allow for a conference because there is no available slot in the diary to accommodate it, or because the papers come too late for it to be meaningful – or are told all the conferences have been claimed by earlier counsel and even if there is time for a conference we are often expected to do another for free (which we often do in order to ensure we are able to give our best at court). One of the reasons we often do them for free, incidentally, is because the fee is so insultingly low (this is about £125 gross for many hours of work, in real terms that probably nets down to about £50-60 – I’m not talking about KCs like me, but junior rates) that conferences are as good as unpaid anyway, and because most of us are conscientious enough to want to do a good job at trial and will do what we need to do to make that happen.

Of course, it is also possible that these documents were gone through with the mother but she didn’t remember.

But the point is, whatever the judge is describing and trying (it seems) to flag as a problem may not actually be a problem at all. Or may not be the problem s/he thinks and suggests it is. Which rather begs the question why anything was said at all. Either it is relevant to the fairness of the process (in which case one might have expected to see it in the main judgment with some reassurance that in-trial adjustments ensured fairness – or it serves some other purpose. What that purpose was and whether it is achieved or not is somewhat unclear. The Gazette call it a ‘legal aid plea’ but a judgment from a DJ with such limited explanation of the perceived issue is not going to influence the legal aid agency, who I’m not sure even have any discretion to authorise extra conferences save in events or VHCC cases. I don’t disagree that counsel should if possible have a conference with their client before a contested final hearing, and they should be paid to do so, but this plea is extremely unlikely to advance that cause.

The case itself is a sad one, and neatly summed up by the summary provided at the start of the judgment, something that is becoming more common, as is the use of a pseudonym:

Summary

Rosie, who is 9, is a lucky girl, because her mother, M and M’s family all love her very much indeed. 

I have carefully read and listened to all of the evidence before me.  I agree with Social Services that Rosie has suffered significant emotional harm and impaired social and intellectual development which is due to the care that she received from M before the Court case began.  I do not believe that M intended to cause any harm to Rosie.

I have also decided that it is in Rosie’s best interests that she should continue to live with her aunt, G, and G’s husband, H.  Everyone agrees that they have done a good job caring for Rosie since last July, and that if Rosie wasn’t going to live with M, that is the best outcome.

I have decided that Rosie should be made the subject of a care order.

I agree with Social Services’ care plan, which includes regular and important contact arrangements so that M will be involved in Rosie’s life.

I do not see that any form of contact order is needed.

It’s a shame really that the coverage of the case focused on the Judge’s ‘legal aid plea’ without more than a passing mention of the child at the heart of the case, or the facts and evidence discussed in the judgment, and without flagging that this is a welcome published judgment from district judge level, which is written in an accessible style. This type of reporting is typical of the sort of journalism we used to see before the transparency reforms, much of which was based upon the extraction of a single line of a judgment which was then inflated into a standalone story, which often bore little resemblance to the judgment as a whole. There is nothing wrong or inaccurate in this report, which is written by a well respected journalist, but other than adding a short quote from the MOJ the article doesn’t attempt to interrogate what was going on here or whether the ‘plea’ paragraphs actually make any sense. Now that we are used to more detailed and penetrating reporting about the family courts, something that has been made possible through changes that have facilitated reporters to attend hearings and scrutinise both the process and the facts, this sort of reporting stands out even more. That said, if the report hadn’t been written I might not have spotted the judgment at all.

I know we’re not supposed to mention fees. It’s crass to talk about money – that’s what clerks are for and all that.

But now, it seems, we are expected to keep calm and carry on without any expectation of prompt payment of fees at all. An unspecified amount on an unspecified date. Many legal aid lawyers would say this has been the case for a long while now, so erratic is the legal aid payment system, but at least there was a process and a rule book. And in fact FAS claims, at least, were reasonably efficient.

Now, as a result of the hacking of the Legal Aid Agency’s systems, they can’t see how much we are owed, can’t accept new claims, and can’t pay us. For an indefinite period of time, now acknowledged to be the situation for the foreseeable future. Here’s the message we all got last week:

It is unlikely that all services will be fully resolved in the short-term. As such we are now refining further plans for contingency, in the event that the need for contingency continues beyond this month. We will work closely with representative bodies to ensure this supports providers and their clients to the maximum extent.

          We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.

Brilliant.

As the extract above notes, there is a ‘contingency scheme’, apparently soon to be ‘refined’. But as it stands, this scheme invites participants to accept payment of a weekly loan equating to 25% of an essentially arbitrary figure (calculated from the amount we received in the 3 months prior to the hack, which given the lumpiness of most of our incomes is truly meaningless), which might be called back in within 2 weeks of the system being back online, at a time when presumably the LAA will have a massive, humungous and ginormous (etc) mountainous backlog of claims to process, with elongated payment times as a result. The process of reconciling the amounts paid against the claims once they come in is likely to be nightmarish. We don’t even receive a remittance for the contingency payments so it is easy to see there will be all sorts of antics and problems with this.

So for now it’s a choice between frying pan or fire (the third route is eyewateringly expensive commercial debt loans which I know some colleagues have preferred, which tells you something). Either way, the risk – and cost – is entirely on us. Don’t claim and risk not being able to pay our tax bills, mortgages etc. Or claim and risk being unable to pay them later because you are caught up in the backlog and / or in an interminable tangle of reconciliation and recoupment… or pay high rates of interest as a result of our default … but obviously, do please keep on working without complaint even thought we can’t give you any guarantees about payment at all. They didn’t actually say that out loud, but that is presumably what this coded message is intended to mean:

We will maintain our focus on ensuring access to justice, and that providers can be confident in their payment for work done.

Are you confident?

What other industry would have people working on a ‘we’ll pay you when we can if that’s ok’ basis? And a ‘we’ll borrow you some money and claim it back when we feel like it too’ basis? That isn’t even the worst of it. If and when we ever do get paid it’ll be at rates that haven’t been increased for over two decades. And while we wait for a solution, you can be sure that another arm of the government, HMRC will be ruthlessly efficient in expecting us to pay tax promptly even as our income stream has dried up entirely, apparently unable to appreciate that life at the bar is an unbreakable cycle of robbing Peter (Peter being the savings you have diligently put by for tax) to pay Paul (Paul being your mortgage, which you can’t pay because your aged debt with the LAA keeps getting bigger but nothing is coming out the other end).

I’m not especially grumbling on my own behalf, though it is somewhat anxiety inducing and is making it very difficult to plan things – holidays and home maintenance projects depend on being able to project your likely income – always difficult at the bar, but now utterly impossible.

No, I’m thinking more of the junior end of the bar, those who have been on maternity or off sick and need to get earning, and those who were planning a retirement soon, for whom this will cause very real problems. Anyone who doesn’t have a stash of savings or a private client practice to cushion them in forthcoming months is going to have to continually weigh up the risks of opting in to the contingency scheme or not.

I’m pleased that the FLBA and Bar Council are working really hard on behalf of all of us to encourage the LAA to sort out the mess, and I dare say the contingency scheme existing at all is largely down to their swift response – but the reality is that this sort of IT problem can’t be resolved quickly and the current contingency arrangements are not hugely reassuring or satisfactory for many. There are hints in the LAA emails of ‘further plans’ if the outage goes on much longer, but what those might be is anyone’s guess. Something that places the risk and additional costs in the lap of the party who is unable to meet their obligation to pay for services rendered would be a good start.

Anyway, I’m off to get an early night before another week of undertaking a legal aid trial, some of it away from home. Which I might get paid for in 2026, if I’m lucky, Perhaps the hotel and train company I’ll be using to get there and stay there won’t mind if I offer to pay for my room and ticket at some unspecified later date?