Fast-Track Trial Fees

The Professional Practice Committee (PPC) has been made aware of a number of concerns regarding various different arrangements for the payment of Fast Track Trial Fees to counsel. The PPC has been asked to and has considered the issues of professional ethics that arise in connection with CPR Part 46 and both the payment of such fees and their recovery after a successful trial.

It is hoped that amendments to the Costs Practice Direction and Form N260 will shortly be announced to clarify that the prescribed fees are the only amounts that may be awarded inter partes, and that where awarded at the conclusion of a trial, the whole of the prescribed fee (at the appropriate level) must be paid to the trial advocate.

Pending such changes to the rules, the PPC has issued the following guidance in respect of the four main types of arrangement of which it has been advised.

Situation 1: The brief fee for the fast track trial is fixed at less than the fee prescribed by CPR Part 46.

Counsel must ensure that the costs schedule (N260) put forward is correct at the time of filing, and states the amount actually being paid to the trial advocate, rather than the prescribed fee. Otherwise the statement of truth at the foot of Form N260 will be false.

If the Judge awards costs to a receiving party which includes the advocate’s fee prescribed in the rules then the barrister must be aware that any difference between the prescribed fee and the advocate’s fee stated on the costs schedule belongs to the lay client and, if appropriate, should advise the solicitor accordingly. Indeed there is a real danger that to allow the solicitor or funder to keep the difference would be considered to amount to giving a commission for a professional purpose contrary to the Code of Conduct at 307(d) thereby constituting professional misconduct.

Situation 2: Counsel is to be paid the full prescribed fee if the trial is won, but nothing at all if it is lost.

This is a conditional fee agreement (CFA). In order to be lawful, therefore, it must be in writing. The PPC considers it amounts to professional misconduct to agree to do a case on a CFA on this basis without the agreement being reduced to writing; it would be an unlawful and unenforceable agreement.

Although the PPC considers that there is no objection to this sort of CFA in principle, barristers are not obliged to enter into this sort of agreement by the cab-rank rule or for any other reason. They would be well advised not to take on work on this basis unless happy to take the risk involved. Accordingly, chambers should not put pressure on others to undertake work on such a basis.

Situation 3: Counsel is to be paid a lesser fee than the prescribed fee if the trial is lost, but will be paid the whole prescribed fee if it is won.

This again is a CFA. Again it must be reduced to writing in order to be lawful, and if it is not, counsel should not seek to recover costs under it.

Situation 4: Counsel has entered into a CFA and has been asked to share his percentage increase of the prescribed fee (i.e. the success fee / uplift) with the solicitor or funder.

This arrangement would almost certainly be considered to amount to giving a commission for a professional purpose contrary to the Code of Conduct at 307(d) thereby constituting professional misconduct.

Barristers who are unsure about these and other issues of professional ethics are able to contact the Bar Council’s Ethical Enquiries Line on 020 7611 1307, or write to the Professional Practice Committee.

PPC
16 June 2008