The Bar: BSB says end-to-end litigation could cost profession

The Bar Standards Board (BSB) considers barristers conducting litigation a high-risk activity that could result in significant supervision costs and require a hike in practising certificate fees, it has emerged.

From this week, the prohibition on self-employed barristers conducting litigation has been removed. Under the new BSB code of conduct – approved by the Legal Services Board in July – for the first time self-employed barristers have the opportunity to compete directly with solicitors in managing litigation on behalf of clients from start to finish.

In a consultation on the one-off administrative fee to be charged for dealing with applications to conduct litigation – proposed at £90 per applicant – the BSB revealed it was mulling whether to introduce a litigation authorisation fee separate from the general practising certificate fee. Initially, there will be no additional charge for authorisation.

Under its new risk-based approach to enforcement and supervision, the BSB will treat litigation generally “as a high-risk area of practice” that might absorb significant resources.  “We anticipate that practices which conduct litigation may create additional demand for our supervision resources, including staff time.”

If an extra demand on its resources does result in practice, the board “will consider introducing an additional element in the practising certificate fee for those who intend to undertake the conduct of litigation”.

The BSB said individual barristers who were the only one in their chambers authorised to do so, presented “specific risks” and would therefore figure more prominently in random sampling of application questionnaires.

Applicants will be expected to “self-assess the suitability of their skills, knowledge and experience of litigation” and confirm they have suitable procedures and systems in place. BSB staff will check on such things as practising status, years’ standing, insurance, and the completion of litigation courses.

The BSB will launch its new handbook, which includes the code of conduct, on 22 January. A keynote speech by the attorney general, Dominic Grieve QC, will mark the event, which will be chaired by the former Lord Chief Justice, Lord Judge.

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