Enforceable contract: consistent with liberalised legal market, says Bar Council
Plans for a contract that will allow barristers to sue solicitors for unpaid fees, and a blacklist of solicitors who fail to pay up on all cases, rather than just privately funded ones, have been unveiled by the Bar Council.
The Bar Council said the new terms of business – which have been long in the formulation – are intended to be “transparent and enforceable, and to provide more protection to barristers (particularly young barristers) in countering unacceptable delays in payments… The move to adopt enforceable contract terms is consistent with the liberalisation of the legal services market”.
It said the current Terms of Work on which Barristers offer their Services to Solicitors and the Withdrawal of Credit Scheme 1988 (as amended) fail to address the need for clarity in relation to the professional obligations of barristers and solicitors to each other and to the lay client, and lack an effective method of enforcement of those obligations and rights.
The new terms replace these and abolish the Withdrawal of Credit Scheme. Whilst barristers and solicitors will continue to be free to agree any terms, it is envisaged that these new contractual terms will be used wherever alternative terms have not been agreed. The new terms would apply only to privately-funded matters or where the solicitors would pay counsel direct.
However, the Bar Council has proposed replacing the Withdrawal of Credit Scheme – under which barristers are not allowed to accept privately paying instructions from named firms without receiving payment up front – with an advisory List of Defaulting Solicitors scheme. This would not only apply to privately-funded matters but also to publicly-funded matters.
Sarah Asplin QC, chairwoman of the implementation committee, said: “The present system is outdated and is a barrier to entry to the bar of those from less advantaged backgrounds who can ill-afford unacceptable delays in payment and write off significant amounts of fees due to lack of an effective enforcement process.
“It is in the interest of all involved in the administration of justice that the terms on which barristers are instructed by solicitors are transparent and enforceable. Clarifying and enabling the enforcement of rights and duties of both barristers and solicitors can only be beneficial to any client needing access to justice and I believe these new terms meet this need.”
