The Bar Standards Board (BSB) has finally published a consultation on changes to the standard contractual terms and the cab-rank rule – almost eight months later than it had originally promised.
The barristers’ regulator indicated it was leaning towards recommending the rule’s replacement by an outcomes-focused ‘principle’ to guide barristers, rather than a prescriptive rule to which there are numerous exemptions.
Conducting a review was one of the undertakings made to the Legal Services Board after the Bar Council accepted at the end of 2013 that it had breached the independence of the BSB by interfering in cab-rank rule changes designed to facilitate the standard contractual terms between barristers and solicitors.
In December, BSB director Vanessa Davies apologised for having failed to meet the deadline of 31 July 2014.
In a consultation on proposed changes to the cab-rank rule, published last week and ending on 19 June, in which the BSB gives options on whether to retain references to a set of standard contractual terms and to the list of defaulting solicitors within the list of exemptions to the rule, the regulator revealed the results of its 12-week call for evidence and survey on the rule, launched in October.
Responding to the call earlier this year, the Law Society questioned the rule’s “operational value” after a survey of solicitors found just one person had actually invoked it.
The BSB said the evidence suggested reliance on the rule was rare because barristers were voluntarily applying it, because market forces had helped create a supply of barristers with a commercial self-interest in accepting work, and because solicitors would not think it helpful to their client to force a barrister to undertake a case.
Further, while it was rare for solicitors to invoke the cab-rank rule in order to obtain representation for their clients, quantitive data in its own survey had shown it was “much more common for a barrister to accept cases they might not otherwise want because of the existence of the cab-rank rule”.
The notion that the real value of the rule was as a general professional principle that guided the decisions of barristers, appeared to inform the BSB’s final consultation question on the future of the rule. It would be addressing “the broader question whether such a prescriptive approach remains the most effective means to secure the objectives behind the rule” when it reviewed the new Handbook, and invited comments.
It continued: “The proliferation of exemptions to the rule in its current form can seem to detract from the central importance of the cab-rank principle itself… We will explore whether a new approach to the cab rank rule may be appropriate
“Elsewhere in the Handbook, the BSB has sought to be increasingly less prescriptive and more outcomes focused… The rule might… be drafted in a way that better reflects the reality… of the practical operation of the cab-rank rule today (i.e. as a core principle to be upheld rather than a rule with detailed, prescriptive exemptions).”
Under the current rules, the BSB Handbook provides that the cab-rank rule only applies if instructions are on the basis of either standard terms or the barrister’s own published terms. Options being consulted on are:
- The status quo;
- Retaining the standard terms but giving greater flexibility to the barrister to propose terms for the instructions in question;
- Removing the standard terms but requiring the barrister either to adopt their own standard terms or propose reasonable terms for the instruction in question; and
- Removing the standard terms but requiring the barrister to accept any reasonable terms offered by a professional client.
The BSB is also consulting on whether barristers should be exempted from the cab-rank rule “where it is reasonable to conclude that the professional client represents an unacceptable credit risk”. At present, the exemption only applies if a solicitor is on a list of defaulting solicitors, kept by the Bar Council.