Very High Cost Cases - Guidance

The Bar Council receives a number of enquiries from barristers arising out of the Very High Cost Cases regime in criminal matters. This guidance should cover most of the difficulties that arise.

General

You should bear in mind the following general points:

The Cab-rank Rule does not apply to VHCCs, unless the fee and the arrangements are appropriate for the entire case;
having entered a VHCC there are no occasions on which it will be proper to withdraw from the agreement simply because of a dispute over the time that is allowed to undertake particular work and very few occasions on which it will be proper to delay work while a dispute is being resolved.
The relevant passages of the Code of Conduct are set out below. with regard to the acceptance of work:

“604 Subject to paragraph 601 a barrister in independent practice is not obliged to accept instructions:
….

(b) other than at a fee which is proper having regard to:

(i) the complexity length and difficulty of the case;

(ii) his ability experience and seniority; and

(iii) the expenses which he will incur;

and any instructions in a matter funded by the Legal Services Commission as part of the Community Legal Service or the Criminal Defence Service for which the amount or rate of the barrister’s remuneration is prescribed by regulation or subject to assessment shall for this purpose unless the Bar Council or the Bar in general meeting otherwise determines (either in a particular case or in any class or classes of case or generally) be deemed to be at a proper professional fee;”

The effect of this is that barristers are not required to accept work under the VHCC regime.

The effect of paragraphs 608(a) and 603(b) is that barristers must withdraw

“If having regard to his other professional commitments he will be unable to do or will not have adequate time and opportunity to Prepare that which he is required to do;” (para 603(b))

The fact that a fee is unlikely to cover the FULL amount of time a barrister will spend on a case does not trigger this situation and there is no other part of the Code which requires a barrister to withdraw in the circumstances envisaged by this note.

Barristers are permitted to withdraw under the following circumstances:

“609 Subject to paragraph 610 a barrister may withdraw from a case where he is satisfied that:

(a) his instructions have been withdrawn;

(b) his professional conduct is being impugned;

(c) advice which he has given in accordance with paragraph 607 or 703 has not been heeded; or

(d) there is some other substantial reason for so doing.”

In our view a disagreement about fees or the time to be allowed does not amount to “some other substantial reason”.

Accepting a case

When entering into negotiations over a contract, it is crucial that you should be satisfied that the overall case plan and the first stage are satisfactory. in particular, you will be bound to follow the overall case plan and you will find it difficult to obtain extensions or alterations to it at a later stage. Once you have signed the contract you are, in effect, committed to the entire case.

Cases which become VHCCs

Where a case has been privately funded but the client subsequently decides to seek legal aid, a barrister is not required to continue with the case unless he or she is satisfied with the terms of the contract. In these circumstances, it is good practice to:

· set a realistic deadline for agreement of the contract leaving, if possible, sufficient time for the solicitor to seek new counsel so that the client is not prejudiced;

if agreement cannot be reached, the solicitor should be informed that you are not prepared to work under the new proposed fees and, if the solicitor is not prepared to underwrite the original agreement, will withdraw;
if agreement is not forthcoming within a reasonable length of time you should return the papers.

Where, however, the case is an ex post facto case which has been called in by the VHCC unit, there will be very little scope for withdrawal. Although, the primary duty is on the solicitor to notify cases to the unit, barristers also have a duty to do so and if the size of the case is such that you could be deemed to be on notice that it should have been reported to the unit, then you should do so. Withdrawal is only likely to be possible in cases of manifest bad faith by the solicitor (for example he assures you that the case has been reported when it has not).

Difficulties During the case

Frequently, there are disputes over the amount of time that it is appropriate to allow to particular stages or pieces of work. There is an appeal from the decision of the Legal Services Commission case Manager. in these circumstances, your professional duty is to undertake as much work as you considers necessary in your client’s interest. You are not professionally entitled to reduce the work you do to fit the hours that are permitted; the fact there is a disagreement over the hours for which you are to be paid is not sufficient to enable you withdraw. If there is a disagreement over the length of hours, you should take this matter to the appeal panel and feel free to obtain support from the trial judge or from other sources as necessary. in extreme cases, the decision of the panel may be reviewable. Ultimately, however, it must be recognised that the function of the unit and the appeal panel is to establish how many hours’ work it is reasonable to expect the taxpayer to support, not how many hours work the individual barrister needs to do. Regrettably, the Bar Council does not have the resources to take a view on the reasonableness of individual cases.

The single exception to this arises where, under the regulations or the terms of the contract, it is clear that a particular piece of work will not be paid for at all unless prior authorisation is sought. in such circumstances, we believe it is professionally proper for you not to undertake that piece of work until agreement has been obtained. If the time needed to obtain such consent is likely to delay a hearing or progress of a case, then it would be proper to inform the judge of this and to seek the necessary adjournments to enable agreement to be reached. Ultimately, however, if the unit does not agree that the work needs to be done and an appeal is unsuccessful, then if you believe that your client’s interests require the work to be done, then you should do it.

The Bar Council recognises that these arrangements represent onerous terms for barristers who sign up to them. It repeats that it is a matter for each barrister’s commercial judgment to decide whether or not to agree such terms in each individual case. It is very keen to hear of cases where, in counsel’s view, manifestly inadequate hours are allowed by the VHCC unit and barristers are urged to report these cases to the Criminal Bar Association or the Remuneration Committee of the Bar Council.