VHCC contracts under pressure

The Very High Cost Cases (Crime) Panel is in a state of disarray after the Legal Services Commission (LSC) admitted that “a substantial number of barristers” refused to sign contracts by this week’s deadline.

Following the bid round, the LSC offered contracts to 330 solici­tor firms and 2,300 barristers. The LSC says that virtually all solicitor firms have signed, but that a large number of barristers have decided not to.

Under the new rates the daily advocacy fee for a QC drops from £525 to £476, and for a non-QC presenting a case alone from £330 to £285. Barristers without a contract will not be able to accept instructions on new publicly-funded VHCC cases—those likely to last 41 days or more in court.

In a letter to the Bar Council last week, Richard Collins, executive director (policy) at the LSC, warns that barristers refusing to sign could face legal action.

He wrote: “All that is required for a breach of the Competition Act 1998 is a ‘concurrence of wills’ or…that information supplied by any party is supplied to another with the intention of, or knowledge that, it will facilitate the making of an anti-competitive agreement. Under the Enterprise Act 2002, secrecy concerning the steps taken to enter into an arrangement to limit the supply of services is presumed by practitioners to establish the necessary dishonesty.

“If, as we suspect, a large number of advocates are consider­ing not signing the contract…and do not do so, particularly on a cham­bers basis, it will be an inevitable inference that some intervening event has caused a change of mind since they allowed their names to go forward in solicitors’ tenders.”

He concludes that where this conduct has arisen following discus­sions within the Bar more gener­ally, the case law indicates that a concerted practice may be inferred unless the parties have distanced themselves in writing and by their conduct. Bar chairman Tim Dutton QC says there has inevitably been discussion within the profession about contracts, rates, professional obliga­tions etc, but denies any breach of competition law.

He adds that the way the LSC organised the tender contributed towards the current stand-off, as many barristers—often at short notice—had to allow themselves to be included in a solicitor’s tender or lose all chance of even being able to consider signing a contract.

He adds: “If barristers are declining to sign, it seems likely this is because they are coming to the independent view, having carried out an examination of the proposed contracts (issued in final form as late as 7 January 2008) that the terms are simply not economically viable given the circumstances, nor acceptable on their merits.”