Counsel's fees - a reply

George Way, Convener of the Society's Civil Procedure Committee, replies to the open letter from the Dean of the Faculty of Advocates published in last months journal (See June 2007 p12).

The learned Dean in his open letter on the Scheme for Counsel’s fees, with respect, does not address the underlying concerns of solicitors on this matter. The “scheme” is not merely a mechanism for mediating “sanctions”. It is a restrictive set of rules binding both solicitors and counsel in respect of matters such as speculative fees, deferred fees, method of challenge etc. But I think, more importantly, it papers over the cracks in a system which is not contemporary or fit for purpose.

The system of devolved stables is already bringing a new dynamic to the relationship between solicitors and counsel. There are discussions taking place relating to proposals as diverse as agreed hourly rates and commercially realistic fees for cancelled appearances. The fact that advocacy in ancient Rome was a gentlemanly pastime for those hoping for public office (and was therefore unpaid), and the observations of judges in Victorian cases such as Batchelor v Pattison and Mackersy (1876) 3 R 914, must now be read in light of more modern dicta: Rondel v Worsley [1969] 1 AC 191; Saif Ali v Sidney Mitchell & Co [1980] AC 198; and the opinion of the First Division in Wright v Farrell [2006] CSIH 7. Public policy may dictate that certain immunities must attach to advocacy, but it no longer needs to be linked to a fiction that members of the Faculty of Advocates are not paid for services rendered.

Why, in this day and age, should advocates (whilst preserving proper immunities necessary to ensure independence of thought and action in court) not be subject to service contracts, performance standards and the like? Solicitors with extended rights seem to be able to work under the yoke of contract, yet maintain due independence. Indeed, if the message from Richard Smith, the interim CEO of the Scottish Legal Complaints Commission, on the need to set standards ourselves (“if you don’t, we will!”) is heeded, the Bar desperately needs to shake itself or it will find that the SLCC decides what counsel should do for their fees. A proper contractual system may protect them from the worst ravages of inadequate professional services claims under the new regime; the Praetorian Guard will not!

At the June meeting of Council it was agreed that the Civil Procedure Committee be asked to make a recommendation on the future of the Scheme to the following Council meeting