Show me the money part four

Another barrister had a case which was originally listed for one day and where the brief fee was agreed. Shortly before the hearing the side issue a cross application (another application to be heard at the same time) and so the time estimate changed. Instead of being one day it was now 2 to 3 days. Where a case runs into additional days then additional fees called "refreshers" are due to the barrister. Since all this had blown up at the last moment, the clerk was unable to get hold of the solicitor on Thursday and Friday preceding the hearing, and so ended up speaking to him on the Monday when the case started in order to agree refresher fees.

Somewhat astonishingly the solicitor suggested that because no refreshers had been agreed at the outset, he did not propose to pay any refreshers at all however long the case ran on for. This was misconceived. If the case runs on a refresher is due unless there is a specific agreement to the contrary. Moreover in this particular instance the nature of the case had changed by virtue of the fact that the other side had made an additional application. The clerk told the solicitor to think about it, but told him he was not going to tell the barrister because he knew what his reaction was likely to be like, and it would not be pretty. The solicitor thought about this, and during the course of the day he relented. The clerk only ever ended up telling the barrister after the event, and when he knew the barrister would have time to calm down about such a sneaky ploy before the barrister next met with the particular solicitor.

Sometimes situations regarding fees can go wrong through administrative error as happened with two other barristers, each of whom can sometimes be found at legal dinners (perhaps after too much liquid refreshment) bemoaning what happened in these particular instances.

The first barrister was doing a case where the brief fee was deemed to be due on say 4 PM on Thursday, January 17. This was agreed between the clerk and the solicitor. What that meant was that if the case had not settled by that time, the whole fee was due. It is settled before than and notification was given them no fee was due. However at an earlier stage the first letter that was sent out had suggested that the brief fee become due at 4 PM on Friday, January 18. The oral agreement superseded this, but was never confirmed in writing. However on that particular day, once matters had gone past 4 PM both the solicitor and the clerk agreed that the brief fee was now due.

The next day the case settled at about lunchtime. The client said he didn't think he had to pay the brief fee. New solicitors were instructed. They pointed out that there was nothing in writing confirming that it was due by 4 PM on Thursday. The original solicitor then said that although he thought the brief fee was due on Thursday, he couldn't swear to it in court. The clerk had not kept a supporting note. The barrister never got the brief fee.

However the story regarding the other barrister was even worse. His brief fee was split into two parts. One became due on say Monday 11th of November. The second part became due on Monday 18th November at 10 AM.

The solicitors asked the barrister to undertake negotiations with his opponent on Monday 18th November to see if they could try to settle the case. The barrister did so, and after negotiations which took most of the day the case was finally settled. That meant of course that the trial would not go ahead, and the barrister would not get his refreshers, although he would get his brief fee the second part of which had already fallen due that morning. Or so he thought.

In fact the previous Friday the solicitor had telephoned the barristers clerk and asked if accrual of the second half of the brief fee could fall due at 10 AM on Tuesday rather than the Monday. Not only did the clerk agree to this, but he did not bother telling the barrister. Therefore the barrister found out that in fact he was only getting half his brief fee, not all of it. The barrister was not a happy bunny. He asked the clerk why on earth he had agreed to this? The clerk said he didn't think that an extra day would make any difference. The barrister pointed out that if it didn't make any difference, it would be very odd for the solicitor to ask for it. Moreover to do it without telling the barrister, or asking the barrister what the significance of the extra day was, was the cause of the whole fiasco. That may be so, but the barrister never got his money.

You will find many barristers have stories of the "fee which got away" kind.

However next week we will look at another barrister who lost brief fees in an altogether more dramatic and sinister way.