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“Complete backing” for not extending cab-rank rule to public access work

BSB: 27 responses to consultation

The cab-rank rule will not be extended to public and licensed access (PLA) cases after the Bar Standards Board (BSB) received complete backing for the position in consultation.

Feedback has also led it to drop plans for a requirement that PLA barristers disclose the level of their professional indemnity insurance (PII) cover and to allow clients ineligible to complain to the Legal Ombudsman (LeO) to directly instruct any barrister.

A paper before last Thursday’s BSB board meeting said all respondents to its consultation on PLA rule changes [1] agreed that extending the cab-rank rule “could result in barristers ceasing to undertake this work, thus reducing access to justice”.

It continued: “Some responses also stated that the rule could be used to pressure barristers into taking up unmeritorious cases or taking on clients who are unsuited to public access.

“While the Legal Services Consumer Panel noted that there is an ostensible argument for extending the rule to public access cases for reasons of improving access to justice, it concluded that extending the rule could actually be counterproductive due to the potential for barristers to stop providing public access work as a result.”

The paper said the proposal that public access barristers be required to disclose the level of PII cover “met with strong resistance”.

“It was felt that there would be scope for clients to erroneously use the level of cover as a metric of good quality when choosing a barrister, that disclosing the level of cover upon instruction would be misleading as Bar Mutual and others provide insurance on a ‘claims made’ basis and that disclosing the level of cover could encourage unmeritorious claims.”

The BSB said it would instead consider this issue as part of its project to implement the Competition and Markets Authority’s recommendations on greater transparency, “which is currently consulting on an alternative option of barristers confirming that they are covered for all of the legal services they provide”.

Most respondents also agreed with the proposal to allow any client unable to complain to LeO to instruct any barrister directly.

“The main opposition to this proposal stemmed from querying whether a client’s inability to complain to LeO allows the BSB to safely conclude they are sufficiently sophisticated to instruct directly.”

This was even though the main group not able to complain to LeO are business bigger than micro-companies.

The BSB said it expected a divergence of views on the issue and would instead consider it as part of its wider scope of practice review.

Other changes approved include removing the requirement for barristers who are of less than three years’ standing to maintain a public access log, and changes to the licensed access rules – under which organisations or individuals with an identifiable area of expertise or experience can be licensed to instruct barristers directly – including removing the restriction on licensed access clients instructing barristers to represent them at higher courts and the Employment Appeal Tribunal.

The new rules will be submitted to the Legal Services Board for approval.