Money money money part 2

Based on the old adage that barristers were gentlemen (this obviously from the days when barristers were always men) the barrister's fee was always what was known as an "honorarium" which means not something which is a legal debt. The consequence of that was that barristers could not sue for their fees. Instead there has been a means of pursuing unpaid fees by means of a report to the Bar Council. If a solicitor failed to pay fees then in broad terms you have a period of two years with which to report the matter to the Bar Council. If you report it, and the Bar Council considers that there is no proper basis for disputing the fee, then they will proceed to "blacklist" the solicitor if they do not pay the outstanding fee in full. (Sometimes a report will be on behalf of several barristers, in which case all of those fees must be paid in full to avoid the blacklisting).

Blacklisting means that it is professional misconduct for a barrister to accept ordinary privately paid work from that solicitor without the money due being paid in advance. Therefore if someone was going to do a case for them for a fee of £1500, that (together with the VAT applicable) would have to be paid in advance. In practical terms it is enormously inconvenient for a firm of solicitors to be put in a position where they have to pay counsel's fees in advance every time. That is the potential impact of blacklisting.

If there is a dispute about whether the claimed fee should be paid then ordinarily both sides make submissions to a panel consisting of one solicitor and one barrister who will then between them determine what is to happen.

The consequence of this is that obviously seeking to blacklist the solicitor is an extreme step. Therefore unfortunately the only means by which barrister can pursue an unpaid amount is by taking as it were the "nuclear" option. That will almost inevitably have an adverse effect upon the relationship with the instructing solicitor, possibly not just for that barrister but for Chambers as a whole. There can often be tension about the issue between two barristers. Remember all barristers are effectively self-employed. They do not share profits. Thus although to some extent barristers are always interested in and affected by the "Chambers brand" their fees are all completely distinct. Therefore if Chambers is doing very well but one particular barrister is not receiving much money, that is the reality is far is that barrister is concerned.

Let us say a barrister is owed £5,000 by particular solicitor. That solicitor may have been unable to get the money off the client and for a variety of reasons may be unwilling to suit the client. The solicitor therefore (whose responsibility it is to pay the barrister regardless of whether the solicitor gets the money of the client: the barrister has no control over what arrangements the solicitor makes for getting money off the client and the usual arrangement is that the solicitor is due to pay the fee, not merely due to pay the fee when he or she gets the money off the client) may decide not to pay the barrister. However the solicitor may bring in huge amounts of work to Chambers. There might be three different barristers each of whom are earning over £50,000 per year from the solicitor and regard that solicitor is the most important solicitor they have. If there is a threatened report, then the solicitor might threaten not to instruct Chambers anymore if the report is proceeded with. We will consider next week the tensions that can cause, and the problems it can cause regarding payment.