Show me the money part three

This particular barrister was due to do a trial. As we have seen, until the brief is deemed delivered, the fee does not accrue. What happened in this particular instance was that about two weeks before the trial, there was a conference with a barrister and all the relevant papers were delivered. The case was booked in the diary, and the barrister was instructed to do it. However nothing which actually had "brief" written on it was ever sent to Chambers to the barrister. The case was due to start on Monday. Having been working on its large part of the week, on Friday afternoon when the clerk managed to chase down the solicitors on the telephone, they said the case had just settled. The clerk then said they would have to agree a brief fee. The solicitors said they wouldn't have to do, because no brief had ever been delivered.

No doubt appreciating that settlement negotiations were ongoing, the solicitors had simply failed to return any of the calls in the intervening period. To say that this particular barrister was annoyed about this, would be true but far too weak a way of putting it, a bit like saying that the Kray twins were naughty boys. If no brief has been technically delivered, or agreed to have been deemed to be delivered in express terms, then no fee arises. What was undertaken was undoubtedly unfair, but that alone does not give rise to an entitlement to a brief fee.

At least the barrister learned his lesson. From then on when solicitors had a conference, he would always send all the papers back afterwards. "If you want me to do any work on anything, then you can send the papers instructing me to do it". That was not just in respect of the particular solicitor, but all and any solicitors.

Even when the brief has been delivered, there can still be problems, as another barrister found. This barrister was from Liverpool, and was instructed to do a case in London. The case was due to start Wednesday, and was listed for one day. However he did not want to risk a last-minute rush on the morning, and so was travelling the night before, having booked into a hotel.

Negotiations about the brief fee had been going on since the Monday of the previous week. The solicitors had originally offered to pay £ X. The clerk had said there was absolutely no way on earth that the barrister would do the case for that amount. If that was their position, they had better take the instructions now and find someone who was willing to do it for that money. As an absolute minimum, they wanted £ X, an extra £ 350 and a sum of money to cover the train fare and the hotel Bill, or at least a contribution. If that wasn't acceptable, again they had better say so and go elsewhere. The solicitor said that they understood the point, but needed to take instructions.

Every day the clerk telephoned to speak to the solicitor. Each day the clerk was told that the solicitor confidently expected to get the go-ahead, but that various members of the relevant committee at the client were engaged on business in different parts of the world and it was difficult getting hold of them. This carried on until the afternoon before the case, when the solicitor was tied up in a meeting all afternoon and his secretary told the clerk that they would telephone back after the meeting as long as it finished before 6 PM. No return telephone call took place.

They then spoke at 9 AM the next morning. "I have instructions" said the solicitor. "We will pay £ X, take it or leave it.". The clerk had the strong impression that this situation has been engineered, but the choices were either to pull the barrister from the case or to let a tribunal fix the fee. Neither was attractive. Although the solicitors have been told that that fee would never be agreed, it was a bit late in the day for a change of barrister, and of course the barrister had already prepared the case, and incurred the expenses of rail travel and hotel. A tribunal would involve a lot of work on behalf of both the clerk and the barrister in terms of actually identifying what had been done and when and why the fee was justified. Even if they won, that would end up taking up more potentially billable time, which could mean in real terms that the barrister was worse off even if he won, never an attractive position to be in. The clerk reluctantly agreed the fee. Probably sensibly, he didn't tell the barrister until after the case had finished.

That barrister learned his lesson as well. From that point on he always told his clerks to make it clear to solicitors until the brief fee was agreed he would not start work on the papers.

Next week we will look at some unhappy experiences which other barristers had.