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Very High Cost Cases - Obligations under the Code of Conduct

In light of the recent proposed changes to the VHCC Panel Scheme, I will summarise the Professional Practice Committee’s understanding of barristers’ obligations under the Code of Conduct. 

1. If barristers sign the new contract then they will owe an obligation to accept such instructions as are offered under this scheme subject to the normal application of the “cab rank” rule. The suitability of the fee will already have been accepted in advance by signing the contract. The only addition to the normal criteria will be “distant travel”. In all other respects, nothing in the January clarification issued by the Legal Services Commission appears to go beyond the normal application of the “cab rank” rule. I reproduce below the relevant parts of Richard Collins’ letter of January 17, 2008 so that you can make your own judgment. 

2. Breach of contract by any barrister could give rise to a valid complaint of Professional Misconduct. 

3. If barristers do not sign the new contract, it appears that they will now be eligible to be offered VHCC work where no panel member is available to accept the instructions. The fees for this work will be a matter of negotiation between the individual panel solicitor and the individual barrister subject to a ceiling of that which will be paid to the solicitor by the LSC for such services, namely the maximum open to be received by the appropriate panel advocate designated in the Representation Order for those particular instructions within the designated category. 

4. The view of the PPC is that it will be a matter for the barrister who has not signed the general contract as to whether or not he accepts those instructions. If counsel is offered a VHCC at the "capped" rate or below it, and forms the view that this is not "a fee which is proper having regard to the complexity length and difficulty of the case", then under paragraph 604 of the Code it may be declined because the fee is not "prescribed by regulation or subject to assessment" within the meaning of that paragraph. Likewise, where cases are taken out of Graduated Fee and into VHCC the same will apply. 

5. Where counsel who have not signed the general contract are offered individual instructions in a particular case, I would advise them (in the absence of any contract between them and the LSC or the instructing solicitor) to ensure that the precise terms of every aspect of the funding (including travel) are set out clearly and unequivocally in writing and agreed by both parties and by the solicitor and the relevant official of the Legal Services Commission/High Cost Case Unit to avoid disputes later on. 

6. There is reference in Mr Collins’ letter of January 17, 2008 to “capacity”. For the avoidance of doubt, I wish to emphasise that declining instructions because of lack of capacity to undertake the instructions is not an option under the Code, it is an obligation. Failure to observe this provision could lead to Complaints initiated by the Legal Services Commission, the Court, opposing or co-defending advocates, the lay client or the Bar Standards Board itself. 

7. The importance of understanding Code obligations is emphasised by Mr Collins’ observation in his letter to the Chairman of the Bar dated February 10, 2008 where he says that, in the light of recent events, advocates who have signed the contract may receive more work than they might reasonably have expected and in the correspondence as a whole making it clear that non-panel advocates may be approached to undertake VHCC work at rates to be negotiated with instructing solicitor up to the maximum permitted level for the applicable category but with no prescribed minimum figure.

David Etherington QC. 


Extract from Mr Collins’ Letter of January 17, 2008. 

“…the LSC has decided that it would be helpful to provide further clarification on the following issues.

• Contractual obligation to accept cases; there appears to be concern that the LSC will oblige Advocates to take any case that Panel Members may offer them. Whilst the purpose of the panel is to ensure that clients have adequate access to appropriate legal advice, the LSC does not require Advocates to accept each and every case where a Panel Member (PM) may wish to instruct them. The LSC accepts that for various individual reasons, (capacity, competence or other reasonable concerns such as unreasonable travel etc.), advocates may need to feel it necessary to turn down instructions. This is no different from the current situation and LSC does not intend to alter this.
• The Distant travel rules. There is no compulsion on individual advocates to accept cases that are classified as “distant”. The acceptance of such cases is entirely voluntarily. The LSC noted the difficulties that may be placed on individual advocates if teams were restricted to a choice of advocates on their lists and as a result of this the LSC permitted teams to access the combined list of all advocates to cover eventualities concerned with availability and distant clients. This change was implemented as a result of consultation with the Professions and their representative bodies and was specifically designed to ensure that teams and individuals would not be compelled to accept distant cases.
• We believe that it is possible in the majority of cases to determine any travel implications at an early stage and indeed it is our experience that most defence teams are not fully formed until after notification. I believe it is reasonable to suggest that counsel may make an informed choice of whether or not to accept a “distant case” and if unsure as to whether they may be remunerated, their case manager may clarify the situation with the CCU before this decision is taken. In the circumstances where a change of venue occurs that cannot be predicted and is outside the control of individuals then this will be considered as an exceptional circumstance.

I do not believe there is any difference between the distant travel rules between the AGFS and the VHCC Panel scheme with respect to the ability of an advocate to demonstrate exceptional circumstances by which they may claim distant travel. It may be argued that the VHCC is more generous in some circumstances allowing for up to 2hrs / 50miles each way travel without the requirement to get any prior authority…”