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Show me the money part two

This week we start to look at various instances where particular barristers were outraged at the approach taken in respect of their fees.

However in order to understand the position regarding fees, and these particular stories, there are certain points which it is necessary to understand. The first relates to the concept of "brief delivered". This means that a brief for the particular hearing has been delivered to the barrister. That means that the entitlement to a fee for the hearing has arisen. If the fee has not been agreed, then the barrister will be entitled to a reasonable fee. Depending on the stage that has been reached, that will not necessarily be the full fee that the barrister would have received for undertaking the hearing, but it depends upon all the circumstances. For example, the agreement may be before trial for a "staged" brief (explained later in this piece). Let us say that a trial is due to commence on March 1. The skeleton argument may have to be filed by say February 23. There may be many weeks of work on the papers before that. In addition, depending on how long the trial is, time will be blocked out of the diary to deal with that (and other work consequently turned down) for the days after the first day of the trial. Payment is made on the basis of a brief fee and refreshers. The brief fee covers all of the preparation and the first day of the trial. There will then be an agreed rate for every additional day, or for example days preparing written submissions. Thus if a trial is going to last three weeks, the barrister would receive X for the brief fee and then Y for every day spent on the case thereafter (so if it ran the full three weeks the barrister would receive X and 14Y). Depending on how the brief fee was structured, if the case settled shortly before trial the barrister would receive either the brief fee or whatever proportion thereof was agreed (or in default of agreement whatever fee was deemed to be reasonable, which would either be agreed or referred to a tribunal), but would receive none of the refreshers. Although the barrister would then be available to do other cases, of course the diary would have been kept clear for the days of the trial and especially on a late settlement it may be very difficult to find replacement work for those days at the last minute.

Some years ago an eminent QC was due to do a trial which was going to last for a year. There was a lot of technical complexity in the case, and so in addition to the preparation for the trial itself he had go on various courses to make sure he understood the science underlying the dispute in the case. Everyone was agreed that this was a case would never settle (i.e. the parties would never come to terms so as to avoid the need for a trial in court). Needless to say, shortly before the hearing it did settle. Although his brief fee was payable, his diary was clear for the whole year. Moreover he was absolutely shattered at the thought of having done all this work and then not being able to do the case. After a holiday, he accepted an appointment on the bench. I doubt that would have happened if the trial had gone ahead.

A brief fee might be "staged". Thus in the example given above, the agreement might be the one third of the brief fee accrues on each of a number of dates within February. For example it might be one third due on the 9th February, one third due on the 16th February, and one third due on the 23rd February. Thus if the case settled on 22nd February, the barrister would receive two thirds of the brief fee and none of the refreshers. His or her clerk would have to start trying to see if work could be obtained for the vacant period in the diary.

The present court rules and practice directions under the Civil Procedure Rules mean that because the parties have to file skeleton argument before the trial (these being written arguments summarising the points they propose to make, which is why they are "skeletons" because they are the bare bones of the argument) briefs have to be delivered (and normally brief fees and refreshers agreed) in advance of the trial date. However many years ago when parties did not file written arguments beforehand, they just literally pitched up on the day of trial and dealt with everything orally. That meant that the timescale for delivery of the brief was much more elastic. That could be the cause of much argument and difficulty. We will see exactly how next week.

Michael J. Booth QC