You might think that no news is good news. And that since the Qualified Legal Representatives (‘QLR’) scheme has been in force for 8 months, the comparative invisibility of it must mean its all bedding in nicely. Actually, it’s just bedding in verrrrrry slowly.

I am signed up to be a QLR, albeit for only a few courts local to me (more on why anon), because I think that its important that the scheme works, even if it is an inelegant solution to the problem at hand. But yesterday was the first time I’ve been asked if I could do a QLR case. Oddly, it wasn’t for a court I’d signed up for and rather than being directed to me personally, it was clearly sent to a number of people (bcc’d). And I wasn’t alone in receiving an email when I hadn’t signed up to that court. This suggests that HMCTS are having to abandon their rota system and cast the net far and wide to find a QLR for their case. Uh ohs.

The case was a two day Private Law Fact Finding in Truro with a 30 min PTR a month before. Judicial tier and bundle information were not provided, so it’s impossible to know exactly how much one would get paid for this work, but the email did tell me that both hearings are attended. Even though Cornwall in the summer is lovely, I’m pretty sure HMCTS are going to find this a tough one to get covered. The email tells me sternly not to reply unless I can help. Which I can’t. But I can explain why this case should forewarn us of far more abundant problems ahead.

Because the QLR scheme was only introduced for cases issued after 21 July 2022, and because court listing is backed right up, very few of eligible cases have reached fact finding stage so far. But they are distant specks rolling over the horizon now in great hordes, on the they will be on our doorstep pretty soon. This one is just the outrider. Imagine it replicated by the thousand up and down the country, like a swarm of orcs (apologies for the Lord of the Rings imagery, it’s on permanent loop in our house).

Anyway, let me explain why I’m worried.

Expenses

You can’t get to Truro by train on the day for a 10am start. It takes between 3 1/4 and 4 ½ hours to do the journey. So a hotel is required. (I concede, a more energetic early riser than I could probably drive it – but its a 3 hour drive without stops and without traffic, and its about 340 miles – it’s not going to be any cheaper to drive and you’d have to leave at the crack of a sparrow’s fart to be sure of arriving on time).

It costs £94.20 (off peak return) to get from Bristol to Truro by train (I’m going to assume if the court are emailing counsel in Bristol they don’t have anyone closer. I had to check for midweek dates towards the end of May, which is when the train timetables run up to).

The Truro Premier Inn is showing a cost of £144 for 2 nights (for the May dates I checked). It’s a bit cheaper if you book an un-refundable room and pay in advance, but might as well burn your money as pay in advance for a hotel booking, because that increases the chances of HMCTS not being able to find a judge and notifying you of this at 3.55pm the day before the hearing (or of the case being pulled for some other reason) to approximately 98%. Obviously, other hotels are available and I’m sure Truro has some lovely B&Bs from the basic to the boutique, but B&Bs don’t always offer cancellable options and are a bit of a lottery. If one left the booking of a hotel until the last minute (which is what I’d do) I think it’s quite likely that availability/choice would be very limited and the cost materially higher.

So. The costs of travel and accommodation to these two hearings would be something like £166.20 (PTR) and £238.20 (FF) = total cost £404.40. If you assume there is no need to buy caffeine, water, breakfast, lunch and dinner whilst away. And if you ignore the cost of a taxi between hotel to court (Premier Inn is nowhere near the court).

But what might a QLR get paid for this tricky and important work, I hear you ask? I will walk you through the fee structure and the reality of what it looks like to a self-employed barrister.

Doing my back-of-an-envelope-best on limited information, here is my estimate of fees and likely real profit.

PTR

PTR fee for a hearing up to one hour = £68.94. No bundle uplift is payable. This hearing will earn an advocate a grand total of -£97.26 once travel and accommodation are deducted. And that’s if the hearing is before a District or Circuit Judge. If its before the magistrates (which many 2 day fact findings will be) the fee will be the even less grand £62.69 and the amount earned after travel and accommodation the even less attractive -£103.51. IF the hearing runs on for more than an hour the advocate will earn a bit more, but not a lot. So. This hearing will make a loss.

If the hearing were cancelled for a not-entirely hypothetical reason such as lack of a judge, lack of an interpreter or a failure in police disclosure, the advocate will be paid the fee (of £68.94/£62.69) if they have done more than 30 minutes of work. They will not be reimbursed their travel or hotel expenses whether or not the hearing goes ahead. Typically, cancellations for lack of a judge will be late in the afternoon the day before the hearing – usually too late to cancel a hotel.

An advocate who agrees to attend this hearing will be expected to:

• read the bundle before the PTR (we don’t know how big it will be) for no fee,
• meet the prohibited person (NOT a client) to establish what the key elements of their case are (NOT taking instructions),
• prepare a document for the PTR (containing the not-instructions from the not-client),
• prepare cross examination,
• hope that the hearing runs on longer than an hour,
• hope that the hearing goes ahead,
• book out their diary for the 2 day FF hearing,
• spend 3 nights away from home and approximately 14 hours on trains,
• accept that if the main hearing doesn’t go ahead (or is postponed to a day they can’t do) they will make a loss not a profit.

Sounds great, dunnit?

Fact Finding Hearing

The fees are a bit better for the main hearing, but your hotel and travel costs will still not be reimbursed (this is why I didn’t sign up to do QLR work at Truro).

Day 1 will pay £545.91 (£496.30 if Magistrates). Day 2 will pay £436.73 (£397.04 if Magistrates). Grand total of fees for this two day hearing would be £982.64 (£893.34 if Magistrates).

IF the bundle is more than 350 pages, a bundle uplift of £159.30 will be payable, but this is unlikely for a 2 day hearing and given the guidance on what documents QLRs should be sent (not much). In common with legal aid work, no fee is payable for watching police video interviews, which can take several hours. In cases involving large volumes of disclosure (typically if there are phone downloads) an additional bundle uplift might be payable (based on page count of over 1400) but this is capped at a one of payment of £318.60. Again, this is unlikely to apply to a 2 day fact finding hearing.

If the hearing is cancelled for any reason, a fee is still payable BUT here its half of one day’s fee i.e £272.95 (£248.15 if mags). So if you’ve paid for a hotel and train ticket already you are going to be a bit stuffed. Soz.

Best case scenario

Let’s assume your risk tolerant approach to this brief has paid off, and both hearings go ahead. The overall fees less the overall travel / accommodation outlay will bring us to a total net fee of £655.14 or £551.63 (Mags). For 3 days work, 3 nights away from home and many hours of travel at antisocial hours (realistically if you are in court locally the day before the hearing you are going to take your toothbrush to court with you and hop straight on the train once you are done, arriving around 9pm. 655 quid is better than a slap in the face with a wet fish I suppose, but this figure is NOT the amount of actual profit resulting from this work. Oh no.

Any barrister who is acting as a QLR will also have ongoing business costs / overheads which need to be met out of any fees earnt, such as:

• insurance (min £260 pa),
• practising certificate (say up to £1,000),
• core text book (approx £600),
• data protection certification (approx £300),
• annual training via conferences and courses (cost varies),
• subscriptions,
• they have to pay for hardware and software every few years,
• increasingly, costs of supervision.

Even just those things above I’ve put a rough price tag on above come to over £2,000 a year.

In addition, to even be eligible to act as a QLR a barrister has to undertake an arduous vulnerable witness advocacy course. Fortunately that course if free, because it’s provided by the FLBA for its members, but it does still have a cost: together with the preparation it takes about 2 full days of their time when a lawyer can’t be earning.

A barrister also has to pay rent to their chambers. Different barristers chambers have different fee structures but let’s say 15% of income (many will pay more).

By the time you’ve factored in a notional daily figure for the above overheads, your net profit is down to about £520.91 (I’ll spare you the fine detail, I’m not a complete sadist) or £440.89 for magistrates.

I reckon this case is going to involve about 34 hours of your professional time:

6 hours prep (conservative), 1 hour con, 1 hr PTR hearing and 6 hrs each day of the 2 day FF, plus 14 hours on the train (when you can’t realistically do other work due to GDPR). That’s 34 hours.

Converting the figures into a very approximate hourly rate this amounts to £15.32 p/h (12.97 if mags). Minimum wage is £10.42 p/h.

I’ve not costed in the cost of qualifying, subsistence or those other overheads above that don’t have a specific cost estimate, so these figures are likely to make the fee look more generous than they are.

Finally, all these figures are before deduction of Income Tax and National Insurance. Oh, and the self employed bar don’t get sick pay or holiday pay etc.

I’ve focused on barristers partly because the economic issues are ones I understand best, and partly because at present the only qualifying course available for lawyers is run by the FLBA for barristers, meaning that the pool of potential and actual QLRs is predominantly made up of barristers. Solicitors have a different corporate / employment structure, but those individuals / firms will also have similar sorts of overheads. I’d be surprised if this work is any more attractive to solicitors than it is to barristers.

There are lots of variables and guesstimates in the above, but I’ve tried to make reasonable assumptions based on experience. What I think is pretty clear is that this is not a hugely attractive gig (even ignoring the subject matter and particular challenges of the QLR task). Those of us who work in this field don’t do it for the money, but we do have to pay our rent and feed our children and we can’t work at a loss. This is not a complaint about my income by the way, but the reality is that the prohibition is mandatory, and its functioning depends upon a funding system that will incentivise lawyers to make themselves available for this work in large numbers. The cost in human and efficiency terms of not doing so will be huge. The cab rank rule doesn’t apply to this work (which means we don’t have to agree to do it), it’s high risk (professionally, ethically and financially), and even if hearings go ahead as planned, and even if you are much more junior than moi, it’s not very well paid. It’s not a fee which properly reflects the skill and responsibility the job demands.

It is well known that there are not enough lawyers signed up to be QLRs. This means that courts are increasingly going to have to search further afield in order to find a willing advocate. And yet the further afield they go the more unattractive the ‘opportunity’ is, precisely because of the distance. Placing the cost burden and risk of travel and accommodation on the lawyers is a really big disincentive which will make it even harder for courts to find people to do the job. More than that, it’s a slap in the face to suggest we should do this work without the travel expenses that we would normally be paid by the Legal Aid Agency if we were representing a publicly funded client.

This may be less of a problem in courts near big cities with largish legal communities (maybe), but in rural courts or locations which are not well served by a local bar or good transport links this could be a real disaster – we could see the emergence of QLR deserts. It may also be less of a problem in public law cases or cases at cases heard by more senior judges (where fees are a bit higher), but the volume of private law fact finding and welfare hearings being dealt with by lower tiers of judiciary and where the prohibition will apply is going to be huge.

It boils down to this: if there is no QLR the hearing can’t go ahead. That fixture is vacated or adjourned. Another slot and another judge has to be found. More pressure is placed on the system, more delay for the families. The whole machine grinds to a halt. And it could grind to a halt in quite a few cases if my pessimism is not misplaced. Which, sadly, it rarely is. I want the scheme to work but my hobbit sword is glowing bright blue.

For those who want to check for themselves, here is the fees order, and here is the statutory guidance.