BSB apologises for failing to review contractual terms and cab-rank rule

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5 December 2014

Vanessa Davies

Davies: “Huge volume of work to deliver”

Vanessa Davies, director of the Bar Standards Board (BSB), has apologised “for any impression that may have been created that we do not take our regulatory obligations seriously” after the BSB failed to launch a review of the standard contractual terms and the cab-rank rule.

The Legal Services Board (LSB) launched an investigation in summer 2013, concerned that the Bar Council had encroached on the independence of the BSB by interfering on the changes to the rule which were to facilitate the new contractual terms between barristers and solicitors.

It was resolved in November 2013 after the Bar Council accepted that it had breached the regulator’s independence and gave four undertakings.

These included that by 31 July 2014 it would carry out and publish a review of whether it was appropriate for standard terms and the related cab-rank rule – that the rule does not apply other than where a barrister is instructed under the terms, or under their own terms – to remain as regulatory arrangements.

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This was not done and recently-released papers for the LSB’s board meeting in October reveal that, in a meeting with then LSB chief executive Chris Kenny, BSB vice-chair Patricia Robertson QC had been “frank about hers and the organisation’s shortcomings in failing to comply” with the undertaking.

Baroness Ruth Deech, chair of the Bar Council, also wrote to the super-regulator to say that the BSB had been “very busy” but there was “no justification for failing to comply”.

In a letter to Mr Kenny earlier this autumn, Dr Vanessa Davies, director of the BSB, apologised and said she was “confident that a similar situation would not arise again”.

Ms Davies said: “We have had a huge volume of work to deliver over the year so far in relation to the regulatory reforms to which we are committed and I hope that we can continue to focus on achieving the intended outcomes.”

As a result of all this, the LSB agreed at its meeting in October not to pursue the matter of non-compliance any further in terms of formal or informal sanctions.

In October the BSB issued a call for evidence as part of a new review of the standard contractual terms and the cab rank rule. It said: “This is to establish the contractual basis on which barristers are being instructed, and to gather evidence about the frequency with which the cab rank rule is being invoked.” As part of this it launched a survey for self-employed barristers and clerks at the end of last month.

A spokesman for the BSB said: “We hope that as many barristers, and their clerks, as possible will take part in the survey because the results will help to inform any future regulatory decisions which we make.”

The undertaking given by the BSB also requires that if an application to the LSB to alter any rules is needed following the review, it must be made by July 2015.

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