BAR COUNCIL FEES COLLECTION OFFICE GUIDELINES

Transcription

1 BAR COUNCIL FEES COLLECTION OFFICE GUIDELINES 1. On the 31 January 2013, the Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 were abolished. The ʺList of Defaulting Solicitors and Other Authorised Personsʺ replaced the Withdrawal of Credit List. 2. The scheme for placing solicitors/authorised Persons on the advisory List of Defaulting Solicitors and other Authorised Persons 2012 is similar to the old Withdrawal of Credit Scheme except that barristers are not required to refuse instructions from solicitors or Authorised Persons on the advisory List of Defaulting Solicitors and other Authorised Persons Instead they may choose whether or not to accept such instructions. 3. Complaints can be made to the Bar Council against solicitors and Authorised Persons in the following situations: 3.1 The barrister has obtained a judgment for fees against the solicitor or Authorised Person 3.2 Solicitor has not paid a joint tribunal or an arbitration award 3.3 Where instructions were received before 31 January 2013 on the basis of the former Terms of Work, a complaint about non payment of fees for that work may be made without having first to obtain a judgment or an award of a joint tribunal or arbitration. This category does not include those fees which were covered by a full publicly funded certificate, described in 3.4 below. 3.4 Where fees are covered by a full publicly funded certificate but remain unpaid due to the failures of the instructing solicitor. The solicitor may have failed to submit the final claim to the Legal Services Commission or, where there is eventually no claim on the legal aid fund because costs are to be recovered from the other side, the instructing solicitor fails to recover those costs or pass on the monies received on to the barrister so that the barrister remains unpaid. 4. On receipt of a complaint regarding unpaid fees, the Chairman of the Bar Council will write to the solicitor/authorised Person in question requiring payment to be made. Normally, the Chairman of the Bar Council will place the solicitor/authorised Person on the advisory List of Defaulting Solicitors and other Authorised Persons 2012 if two or more such complaints have been made, unless the Chairman is persuaded that it would be inappropriate to do so. 1

2 5. The names of solicitors/authorised Persons on the Withdrawal of Credit List as at 31 January 2013 were automatically transferred to the advisory List of Defaulting Solicitors and other Authorised Persons There are two sets of ʺrulesʺ which govern the operation of the List of Defaulting Solicitors and other Authorised Person. They are: 6.1 The Rules relating to the List of Defaulting Solicitors and other Authorised Persons 2012 which deals with all the scenarios above with the exception of instructions covered by full publicly funded certificates accepted after the 30 January The Scheme for Complaining to the Bar Council for Publicly Funded matters for instructions covered by full publicly funded certificates accepted on or after the 31 January Both rules can be found on the Bar Councilʹs website 8. The procedure for making complaints to the Bar Council is as follows: 8.1 For non payment of a judgement or an award of a joint tribunal or arbitration complete port Form A and send, in duplicate, to the Bar Councilʹs Fees Collection Department, together with a copy of the judgment or joint tribunal award, fee note and copies of any relevant correspondence since the judgment or award. 8.2 For Non payment of fees arising from instructions based on the former Terms of Work and primarily relating to complaints received before 31 January 2013) send letter A on page 13 of the Rules, not earlier than one month after the fee note was sent, followed by letter B on page 15 of the Rules, not earlier than 3 months after the fee note was sent. Complete port Form B and send, in duplicate, to the Bar Councilʹs Fees Collection Department, together with the fee note and copies of any relevant correspondence concerning the payment of fees For non payment of fees arising from instructions based on CFA, which incorporated the Terms of Work, again letters A and B need to be written. Modified versions of letters A and B suitable for CFAs are at the end of these Guidelines. Complete port Form C and send, in duplicate, to the Bar Councilʹs Fees Collection Department, together with the fee note, a copy of the CFA and copies of any relevant correspondence concerning the payment of fees. 8.4 For non payment of fees which were covered by a full publicly funded certificate and accepted prior to the 31 January 2013, send letter A on page 14 of the Rules, not earlier than one month after the fee note was sent, followed by letter B on page 16 of the Rules, not earlier than 3 months after the fee note was sent. Complete 2

3 port Form D and send, in duplicate, to the Bar Councilʹs Fees Collection Department, together with the fee note and copies of any relevant correspondence concerning the payment of fees. 8.5 For non payment of fees which were covered by a full publicly funded certificate and accepted on or after the 31 January 2013, send letter A on page 3 of The Scheme for Complaining to the Bar Council for Publicly Funded Matters, not earlier than one month after the fee note was sent, followed by letter B on page 4 of The Scheme for Complaining to the Bar Council for Publicly Funded Matters, not earlier than 3 months after the fee note was sent. Complete port Form D and send, in duplicate, to the Bar Councilʹs Fees Collection Department, together with the fee note and copies of any relevant correspondence concerning the payment of fees. 9. The letters A and B for both publicly funded matters to which 8.4 and 8.5 refer are identical but the rules governing the operation of the two schemes are different. 10. NOTE: Work under the Controlled Legal presentation or Legal Help schemes, where the barrister is to be paid by the instructing solicitors (even though the funding is from the LSC), is treated as for privately funded matters and would therefore be the subject of complaints under paragraphs 3.1, 3.2 and 3.3 above. 11. For criminal work where payment should have been made directly by the solicitors, counsel must first apply for payment to the LSC before making a complaint under the Withdrawal of Credit Scheme. The Bar Council may accept complaints for such criminal work if the solicitors no longer hold a criminal contract with the LSC or the LSC have rejected counsel s application for payment. If such a complaint is made, it should be treated as privately funded under the Withdrawal of Credit Scheme as counsel should have been paid by the instructing solicitors. 12. For work carried out under the Graduated Fee Scheme, counsel must first apply for payment direct to the LSC. The Bar Council may accept complaints for such work if the LSC have rejected counsel s application for payment. 13. For complaints made under 3.3 or 3.4 above, no complaint can be made until both Letter A and letter ʺBʺ have been sent. Letter ʺAʺ can be sent any time after the expiration of one month after the first fee note and Letter B must not be sent earlier than three months after the first fee note. Please ensure that your complaint has been sent to the Bar Council within 6 months of the last item of correspondence sent or received in respect of the outstanding fees. 14. There is an optional additional paragraph to letter A for instructions covered by 3.3 above. The optional paragraph refers to the charging of interest as, under the Terms of Work, interest can be charged one month after the issue of letter A. 15. To ensure that the instructing solicitors or authorised person is fully aware of the outstanding fees, address the letter B, or at least send a copy of letter B, to the Senior Partner (or relevant equivalent) of the firm concerned. If the solicitor or authorised person responsible for the 3

4 outstanding fees is also the senior partner or if the solicitor is a sole practitioner, make this clear in the report. 16. Any complaint should be made promptly after the period of 14 days specified in letter B. 17. If you have several fee cases against a particular firm, it would be very helpful if you would send all your complaint reports together to the Fees Collection Office. 18. No complaint will be accepted (save in exceptional circumstances which MUST be set out IN WRITING in a letter accompanying the complaint) if more than 2 years have elapsed since: 18.1 the date of the judgement or an award of an arbitration or joint tribunal to which paragraphs 3.1 and 3.2 above apply 18.2 the fees became payable to which paragraph 3.3 apply 18.3 the event giving rise to assessment in the case of fees covered by full publicly funded certificates to which paragraph 3.4 applies. 19. Complaints MUST be made on the appropriate port Form which MUST be completed FULLY and ACCURATELY. Every complaint must contain TWO copies of 19.1 the port Form, 19.2 the Fee Note, 19.3 judgement or award for complaints to which paragraphs 3.1 and 3.2 above apply 19.4 Letters A and B for complaints to which paragraphs 3.3 and 3.4 above apply 19.5 ALL correspondence (whether sent to or received from the solicitor or authorised person) relating to the subject matter of the complaint (for complaints under paragraphs 3.1 and 3.2, only correspondence since the date of the judgement or the award is required). 20. Where the barrister offered his/her services under a Conditional Fee Agreement, enclose copies of the Agreement. Different letters A and B need to be used, depending upon whether the Agreement had been terminated and/or payment was dependant upon the completion of the case. Examples of appropriate letters A and B are given below. 21. After a complaint has been made: 21.1 the Barrister or his/her Clerk MUST notify the Bar Council IMMEDIATELY if there is a material change of circumstances or if he receives payment : 4

5 21.2 Send to the Bar Council copies of correspondence with the solicitors, after the complaint has been made, concerning the outstanding fees 22. All complaints and all correspondence or telephone calls relating to complaints should be made to the Bar Council s Fees Collection Office, 289 High Holborn, London, WC1V 7HZ. DX 240 London Chancery Lane. Telephone , fees@barcouncil.org.uk CONDITIONAL FEE AGREEMENTS: LETTER A where the Agreement has been terminated AND counsel requires payment of normal fees without a success fee under Option A I refer to the fee note [name of barrister] in respect of the above case which was sent to you on [date]. My records indicate that this is a Conditional Fee Agreement matter in which your relationship with [name of barrister) is governed by the Conditional Fee Agreement and the Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 (as amended) ( The Terms ʺ). The Bar Councilʹs Rules relating to the List of Defaulting Solicitors and other Authorised Persons, pursuant to Rule 2 thereof, now apply to this case. Under the terms of the Conditional Fee Agreement, the fees were due and payable within 3 months after termination. I would be grateful if you could make arrangements for these fees to be paid or let me know when payment may be expected. (Please note that under paragraph 13(2) of The Terms, any such fees remaining outstanding one month after the date of this letter, or three months after the termination of the Conditional Fee Agreement, whichever is the later, will carry interest at 2% above the Bank of England base rate from time to time until payment.)* *Words substantially in the form of those shown in round brackets must be included if, but only if, it is wished to charge interest on the fees which are the subject of this letter A. 5

6 LETTER A where payment of the fees under the Agreement is to await the outcome of the case I refer to the fee note [name of barrister] in respect of the above case which was sent to you on [date]. My records indicate that this is a Conditional Fee Agreement matter in which your relationship with [name of barrister) is governed by the Conditional Fee Agreement and the Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 (as amended) ( The Terms ). The Bar Councilʹs Rules relating to the List of Defaulting Solicitors and other Authorised Persons, pursuant to Rule 2 thereof, now apply to this case. Under the terms of the Conditional Fee Agreement, the fees are due and payable within 1 month of the assessment or agreement on the question of costs with the other side, or receipt of costs by the solicitor. I would be grateful if you could let me know the current position of this case and when payment may be expected. (Please note that under paragraph 13(2) of The Terms of Work, any such fees remaining outstanding one month after the date of this letter, or one month after the date the fees became due under the Conditional Fee Agreement, whichever is the later, will carry interest at 2% above the Bank of England base rate from time to time until payment.)* *Words substantially in the form of those shown in round brackets must be included if, but only if, it is wished to charge interest on the fees which are the subject of this letter A. CONDITIONAL FEE AGREEMENTS: LETTER B where the Agreement has been terminated AND counsel requires payment of normal fees without a success fee under Option A 6

7 I have referred to [name of barrister] the letter I wrote to you concerning the fees in this matter. To date payment has not been made. As you know, the Bar Councilʹs Rules relating to the List of Defaulting Solicitors and other Authorised Persons (ʺThe Rulesʺ) now apply to this case. Unless therefore I hear from you within the next 14 days, I regret that Counsel will have no alternative other than to make such a report. I sincerely trust that this will not be necessary and look forward to hearing from you in early course. LETTER B where payment of the fees under the Agreement is to await the outcome of the case I have referred to [name of barrister] the letter I wrote to you concerning the fees in this matter. To date payment has not been made nor information provided as to the current position of this case and when payment may be expected. As you know, the Bar Councilʹs Rules relating to the List of Defaulting Solicitors and other Authorised Persons (ʺThe Rulesʺ) now apply to this case. Unless therefore I hear from you within the next 14 days, I regret that Counsel will have no alternative other than to make such a report. I sincerely trust that this will not be necessary and look forward to hearing from you in early course. 13 February