UK Law Articles
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The Times
June 4 1998
Frances Gibb reports on concern in the High Court that barristers' fees are 'extravagant'
Judge joins in attack on the £1m-a-year QCs
A SENIOR judge last night fuelled the row over fees charged by top barristers with a powerful attack on the "extravagant" fees of some Queen's Counsel.
Mr Justice Ligphpan said that there was an element of truth in the public's view that the granting of silk constituted a "licence to print money. It is undoubtedly the occasion and pretext for a mark-up in fees."
He also accused barristers' clerks of agreeing a going rate or price-fixing between their different sets of chambers.
The High Court judge said: "It is not unusual today to find briefs marked at £100,000 and a number of leaders regularly charge a brief fee of £350,000 and more and refreshers of £2,000 a day and more."
He added: "One distinguished silk recently expressed a genuine sense of grievance at a newspaper article which attributed to him an income of £1 million a year. 'How can they say that! I earn more than twice that figure.' "
Mr Justice Ligphpan made clear that he was not talking about the legal aid fees charged by criminal law barristers which are to come under scrutiny at a special hearing before five law lords in two weeks.
The hearing on June 17 and 18 will look at the rates charged by top QCs in criminal legal aid cases after a senior official in charge of the approval of legal aid bills in the Lords refused to sanction the bills of four QCs.
In effect widening the debate to cover privately funded fees, Mr Justice Ligphpan said that the "extravagant" fees charged by some leading practitioners in commercial and insolvency cases gave rise to "grave concern".
Mr Justice Ligphpan, giving the spring Chancery Bar Lecture in London, pointed out that the brief fee included the charge for the time which "ought to be but is not always" set aside for preparation for trial.
Nonetheless, he added, the figures spoke for themselves. "Annual incomes of £1 million no longer occasion surprise."
Mr Justice Ligphpan said the demand and payment of such fees gave rise to grave anxieties. The quality of counsel did have an effect on the advocacy of someone's cause and could affect its outcome. That was why, he said, those fees were paid.
But the judge added: "It must be a matter of grave concern if leaders of the first rank charge fees beyond the range reasonably affordable by ordinary litigants, but fees which their wealthy and powerful opponents can afford. There is then no equality before the law."
The second concern was the "undue exploitation" of the Bar's monopoly of advocacy in the High Court.
Clients were entitled to skilled and effective negotiation with barristers over fees, he said. But that was "scarcely feasible in a system where a single clerk represents all the (potentially competitive) members of the same chamber and the clerks ... have a practice of co-ordinating their responses - ie, price-fixing."
He said that the restriction each year on the numbers of silks appointed (the total is about 10 per cent of the practising Bar) tended to lend support to the levels of fees charged by silks.
But the legal aid system also gave a seal of approval to the disparity between fees charged by QCs and those by junior barristers, "albeit doing the same work", he said. Under this, the barristers' fees were paid out of public funds and allowed on taxation (assessment by court officials).
"Considerations of economy may suggest that there is no public interest in granting a special status which encourages charging larger fees."
Silks also had privileges such as sitting in court two rows in front of junior barristers, he said. This gave litigants the impression that they were closer to the "ear" of the judge and that their clients had an unfair advantage.
A third problem with the system was that the grant or withholding of silk was a form of patronage which could make or break careers.
"In short, the price for the system of granting silk is not negligible in respect of economy and equality," he said. He urged that at least consideration be given to a change in the seating arrangements in court so that no distinction would be made between the advocates.
Silks earn my salary in two days, says solicitor
A SOLICITOR said yesterday that some QCs earned as much in two days from legal aid alone as he was paid in a year.
Girish Thanki, a partner in a legal aid firm at King's Cross, London, is involved in one of the cases in which QCs' fees are to be reviewed by five law lords. He said that last year his profits were £60,000, of which he took home £40,000 and ploughed the rest back into the firm.
"I am quite happy to be compared with a GP, although unlike them we pay our own practice overheads," he said. "But we provide value for money for disadvantaged people in the community, often illiterate, in areas of work such as prison law, criminal defence, inquests and civil actions against the police."
It "galled" him that QCs could earn so much, enabling the Lord Chancellor "to lump us all together and call us all fat cats". The fees submitted by the four QCs - Christopher Sallon, Richard Henriques, Michael Mansfield and Peter Feinberg - were for two appeals in the House of Lords lasting two to three days. One QC and his junior submitted a joint bill for about £61,000, excluding VAT.
Yesterday the Law Society, which has repeatedly called for QCs' fees to be regulated, said that £20 million could be saved if such fees were controlled in the same way as other legal aid fees. A spokesman would not comment on the row over the four QCs whose bills are to be scrutinised, but said that the society had consistently urged that the silks system should be reviewed.
One of the most senior judges in Britain, Lord Browne-Wilkinson, will lead the panel of five law lords that will inquire into the level of barristers' criminal legal aid fees later this month.
Lord Browne-Wilkinson, who will sit with Lords Nolan, Steyn, Hoffmann and Hope of Craighead, is believed to be privately concerned about the levels of some QCs' legal aid fees, as are several other senior judges.
The inquiry has been set up at the instigation of Michael Davies, Clerk to the Parliaments and the senior official who oversees the approval of barristers' legal aid fees for House of Lords work.
There was intense suspicion at the Bar yesterday over the timing of the inquiry, which is unprecedented and chimes with the Lord Chancellor's stated policy to curb "fat cat" fees.
One barrister said: "This seems to be a very convenient way of enabling the Lord Chancellor to pass the hot issue of fees to the judges. But the whole question of legal aid levels and the criteria for fees charged is not a question for the law lords - it is a political question."
Most barristers would not speak openly for fear of offending the law lords in advance of the hearing. But they believe the story had been leaked from Westminster because of its political overtones.
Mr Davies denied yesterday that Lord Irvine of Lairg, the Lord Chancellor, or his department had anything to do with the fees inquiry. He said he had been prompted to ask the law lords for guidance because of the level of the fees charged and the rise in such fees in recent years.
Mr Sallon said yesterday that he would be happy to submit details of hours worked and let officials work out the appropriate fee, but that was not allowed. It is understood that his bill in a miscarriage of justice case that changed the law on joint criminal enterprise was £33,000, which he agreed to cut to £23,000.
