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Revised Advocates Graduated Fee Scheme
Payment Protocol
Frequently Asked Questions
[Updated: 17 December 2008]
Introduction
1. This document answers questions arising from The Criminal Defence Service (Funding)
Order 2007 and the Bar Council’s accompanying Graduated Fee Payment Protocol, both of
which may be found on the Revised Advocates Graduated Fee Scheme section of the Bar
Council website: http://www.barcouncil.org.uk/guidance/guidanceforbarristerskeywordsg/
2. Additional questions and answers will be added as they arise.
3. For further information, contact Bar Council Remuneration and Policy: Adrian
Vincent: remuneration@barcouncil.org.uk
A) What can be claimed for?
A1) Q.) Does the Basic Fee cover the first 2 days of the trial?
ans.) Yes: see the definition of “d” under Schedule 1, Part 2, para 4 of the Funding Order.
A2) Q.) Example 7 of the Depleted Basic Fees in the CBA Guidance
[http://www.barcouncil.org.uk/guidance/guidanceforbarristerskeywordsg/] refers to 5
mentions, however, the Funding Order says only 4 standard appearances by the trial
advocate or substitute advocate, is included within the basic fee. Please confirm.
ans.) The Basic Fee only covers the first 4 standard appearance fees. The fifth and
subsequent standard appearances are paid separately as bolt-ons.
A3) Q.) Does the fee for a section 51 preliminary hearing at the Crown Court (also known
as a Narey hearing) come out of the Basic Fee? If so, what is that fee and to whom is it
payable?
ans.) In April 2008, the Bar Council’s Remuneration Committee offered
comprehensive advice on this subject, available at:
www.barcouncil.org.uk/guidance/guidanceforbarristerskeywordsg/ The
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conclusion reads:
“A section 51 hearing in the Crown Court falls within the definition of a “standard
appearance” and falls to be remunerated as such where it is conducted by an “advocate” as
defined in Regulation 2.
In many cases, a section 51 hearing will be unnecessary in view of the standard directions
given in the magistrates’ court. Alternatively, such a hearing could take place
electronically.”
A4) Q.) Does Annex B OF THE PROTOCOL (PCMH fees) apply to every PCMH/PTR in a
case?
ans.)There can only be one Table B PCMH fee (or value) in any case. That will be paid for
the first, effective PCMH. All other PCMHs or PTRs (whether effective or not) will be
“standard appearances”.
A5) Q.) What fee is payable if a defendant fails to attend at some point during the
proceedings?
ans.)This depends on the type of hearing: If a trial = £150 for a Junior as a bolt-on payment
(see para 13 of Schedule 1 of the Funding Order) and for others = a standard appearance fee
(see definition (d) of “standard appearance” at Schedule 1, para 1).
A6) Q.) In the reclassification of offences in the Funding Order, possession of photos of a
child is included contrary to the Protection of Children Act 1978 but not the Criminal Justice
Act 1988 yet this is the same offence – why is this? Could it cause charging problems?
ans.)They are not the same offences. The 1978 Act concerns the making/taking of indecent
photographs, or possession with intent to distribute. It is a Class J offence. The 1988 Act
concerns “simple” possession of such photographs. Originally, the latter was a summary
only offence but amended in 2000 to be triable either-way. It does not appear in the Table of
Offences (an oversight) and therefore it goes into the default Class H. However, it is possible
to apply to the appropriate officer under Schedule 1, para 3(2) for a re-classification, e.g. to J.
A7) Q.) Paragraph 23, Schedule 1 of the 2007 Criminal Defence Service (Funding) Order
has plainly been lifted from the old order without consideration. This measure was
introduced when junior alone fees were substantially less than half leader's fees (save for
Category A where they were exactly half), in order that where a junior appeared alone in a
case where a leader appeared on the same charge he would not receive substantially less
than the led junior who would receive half the leader's fee. However, under the new fee
regime the junior alone fees are more than half in some instances - Cats. A, B, D, J (with a
modest number of pages) and G and K (in every case). Surely, in fairness, this provision
should allow for the junior alone to opt for whichever is the higher fee calculated from the
led junior and junior alone tables?
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ans.) This unfair anomaly, particularly given the financial saving by having one advocate
rather than two, was raised by the Bar Council with the MoJ. This was accepted by the MoJ
who consequently introduced a “The Criminal Defence Service (Funding) (Amendment)
Order 2007, S.I. 3552. This removed sub-paragraphs (2) and (3) of paragraph 23 of Schedule
1. The amendment came into force on 14 January 2008. Therefore the problem identified in
the question will only occur in cases with a Representation Order between 30 April 2007 and
13 January 2008.
A8) Q.) Does an Advocate still get paid an unattended advocate fee of £38.50 per day where
Solicitors have been granted a certificate of attendance but choose not to send a
representative?
ans.) No, this bolt-on no longer exists.
A9) Q.) Does the scheme apply to Dock Briefs? If so how should it be claimed?
ans.) As far as we are aware, there has been no change to the way in which dock briefs are to
be claimed. There was no suggestion in the discussions with Government over the new
Funding Order that there has been any alteration to the present system.
A10) Q.) What happens if work is done on a case for which payment would be included
in the basic fee if a Bench Warrant was issued and either not executed for some years or
not at all?
This is a problem. The trial advocate in this situation is now in a worse position than under
the previous Funding Order, for two reasons: first, the fixed fee payable when the bench
warrant has not been executed after three months has now gone; secondly, the discrete bolt-
ons for pre-trial conferences, tapes, mentions etc have now been absorbed into the Basic Fee,
which is only payable when there is a “main hearing” in the case. The Bar Council recognise
this problem and continue to press for a solution.
A11) Q.) I conducted the PCMH in a case where, after the PCMH but before the trial, the
trial cracked / had a guilty plea. Is my share of the fee that as given in Annex B of the
Payment Protocol?
ans.) Yes. The table in Annex B of the Protocol is calculated as 15% of the trial basic fee,
which is to be allocated to the counsel who conducted the PCMH (see also the table in the
Funding Order, Schedule 1, paragraph 5 for the trial basic fee). Where there is a guilty plea or
a cracked trial the court will not be paying the Instructed Advocate the amount of the trial
basic fee, but will instead be paying the figure for a guilty plea for trials which crack in the
first third (see the Funding Order, Schedule 1, paragraph 7, table A). ?evertheless, the
counsel who conducted the PCMH should not have their share calculated on the basis of 15%
of the cracked/guilty fee, but rather on the basis of 15% of the trial basic fee. This is because
the amount of work counsel will undertake for a PCMH for a case that cracks will be the same
amount of work as for a PCMH for a case that goes to trial. Therefore, the table in Annex B is
correct.
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A12) Q.) I conducted a PCMH in a case where there was a guilty plea at the PCMH. Is my
fee that as given Annex B of the Payment Protocol?
ans.) No. If the defendant pleads guilty at the PCMH itself, the PCMH is in effect no longer a
PCMH at all, but is a guilty plea. Counsel therefore will be paid the guilty plea fee (see the
Funding Order, Schedule 1, paragraph 7, table A).
A13) Q.) I am a sole practitioner. Chambers tend to have specialized software that has the
ability to print out completed claim forms for Graduated Fees. I do not have this software -
how do I claim for my fees?
ans.) You should use form 5144F. It can be printed from the HM Courts Service website
http://www.hmcourts-service.gov.uk/HMCSCourtFinder/FormFinder.do Further
guidance on claiming advocate fees [not just the RAGFS] can be found on the NTT
website http://www.hmcourts-service.gov.uk/cms/781.htm
A14) Q.) I have been instructed on a case that is due for PCMH next week. The Crown
have already served 100 hours of video taped evidence. The Funding Order, Schedule 1,
para 14(1)(c) suggests that special preparation may be payable where "any or all of the
prosecution evidence, as defined in paragraph 1(2), is served in electronic form only...."
and Para 14(3)(c) speaks of the appropriate officer deciding the number of hours
reasonable to view the prosecution evidence. Can I therefore claim for special preparation
for having to view all this material?
ans.) This matter was put to the National Taxing Team. They have replied, “The 2007
Funding Order removed the ‘bolt on’ fees for a number of items, including listening
to/viewing tapes or discs. Instead, the graduated fees have been increased to include
remuneration for such work. The provision for ‘electronic communication’ was not designed
to cover viewing video tapes or DVDs.”
A15) Q.) A case was listed for a PCMH and a day before the hearing the case was removed
from the list because the Crown offered no evidence. Can counsel claim for a cracked trial
or wasted preparation?
ans.) Claims for a cracked trial are only applicable to cases where the crack is after the PCMH
(see Funding Order Schedule 1, Part 1, Paragraph 1). Wasted preparation (Schedule 1, Part
4, Paragraph 15) only refers to circumstances where the trial advocate cannot do the main
hearing.
Claims are made under one of three categories: jury trial; cracked trial; or guilty plea. "Guilty
plea” is a category that can cover different scenarios. A claim should therefore be submitted
for a guilty plea fee, dating it from the date that the Crown offered no evidence.
A16) Q.) Further to question A12, I agreed to act as a Substitute Advocate by covering a
[standard appearance or PCMH] for the Instructed Advocate. At this hearing the
defendant pleaded guilty. Am I entitled to demand from the IA the entire guilty plea fee,
rather than the [£100 for a standard appearance or PCMH fee] that I would normally have
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been entitled to had it remained a simple [standard appearance or PCMH]?
ans.) The Protocol is not prescriptive on this point, but it would clearly be unreasonable for
you to be paid the entire fee and for the IA to receive nothing for all the work that they have
done on the case. Normal practice would be for the IA to pay you something in excess of the
[£100 or PCMH fee] in recognition of the fact that the hearing will have required some more
work on your part than had it remained a simple standard appearance. You should therefore
come to a reasonable agreement with the IA, reflecting the proportionate amount of work that
each of you have done on the case. In the event of dispute, the dispute resolution procedure
set out in paragraphs 46-49 of the Protocol should be followed.
A17) Q.) I conducted a case where sentence was adjourned for further reports. I
subsequently attended four non-effective sentence hearings, which were all non-effective
because the reports from these other agencies had still not been written. The court have told
me that a non-effective sentence hearing is classed as a standard appearance (which
according to Schedule 1, paragraph 19 of the Funding Order is a fixed fee, paid at £100 for a
junior alone) but that they will not pay me for these, stating that the first four standard
appearances are included in the basic fee for the trial (Schedule 1, paragraph 9(b)). Is this
correct?
ans) Unfortunately this is correct. The Bar Council raised this matter with the Legal
Services Commission and received the reply: “The payment for ineffective sentencing
hearings is governed by the definition of 'standard appearance' (Schedule 1, Part 1, para 1
(1)) coupled with Schedule 1, Part 4, para 9 (1) (b) which states that the first four such
appearances are "included in the fee".
The Bar Council are offering to work with Resident Judges and Listing Officers to progress
the culture change of case progression and listing through greater use of telephone and email
and reducing the number of standard appearances.
A18.) Q.) I was the Instructed Advocate on a case at which there was a guilty plea. There
was then a Newton Hearing that was covered by a Substitute Advocate. How much
should I pay the SA for conducting the Newton Hearing?
ans.) The Funding Order, Schedule 1, paragraph 2(6) refers to Newton Hearings. There is
also an explanation in the NTT Graduated Fee Scheme Guidance April 2007, page 9,
paragraph B13(2(6)): "Whenever a Newton Hearing takes place, the case is treated as a trial
with the hearing that the guilty plea was taken being the main hearing and the Newton
Hearing being the second (and subsequent) day(s) of the trial." Therefore, first calculate the
total fee to be submitted. So, if the Newton Hearing lasted one day, the total claim would be
that for a two day trial (Funding Order, Schedule 1, paragraph 5) and this would be the
figure that should be claimed for. Then calculate what the Court would have paid had there
been no Newton Hearing i.e. a Guilty Plea fee (Funding Order, Schedule 1, paragraph 7).
The Instructed Advocate keeps the guilty plea figure and passes the rest to the SA. For
example:
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Guilty plea (IA) followed by 1 day Newton hearing (SA). Junior alone
Category Basic fee Basic fee Payment
– guilty plea - 2 day trial IA SA
A 1312 2547 1312 1235
B 802 1509 802 707
C 519 1038 519 519
D 802 1300 802 498
E 472 755 472 283
F 472 802 472 330
G 755 1415 756 659
H 566 943 566 377
I 660 1132 660 472
J 1132 1887 1132 755
K 1132 1887 1132 755
A19.) Q.) A solicitors firm has an HCA who undertakes PCMHs, registering as the
Instructed Advocate, and then invites barristers to conduct the trial for below the rates set
out in the Protocol. What should a barrister do in these circumstances?
ans.) The Bar Council strongly encourages all barristers to adhere to the Protocol and not
accept work at below those rates. Further to the answer to question D3, this is an example of
a scenario where it would be important to use a slightly amended version of the Annex D
letter of the Protocol stating that you accept the work as Substitute Advocate on the basis
that the terms and provisions of the Protocol apply.
B) THE INSTRUCTED ADVOCATE (IA) AID SUBSTITUTE ADVOCATE (SA):
B1) Q.) To which department at the Crown Court should the notification of the IA be sent;
Case Progression, Listing, Court Manager or someone else?
ans.) There is a centralised email address in each court centre to receive notification of the
identity of the Instructed Advocate, a copy of which can now be found as Annex H of the
Payment Protocol. Notification to the courts of the appointment and withdrawal of
Instructed Advocates can therefore be done by clerks by email or letter on behalf of their
barristers. There is no need for the barrister’s signature.
B2) Q.) Can interest be charged by an SA on fees outstanding beyond 3 months by the IA,
particularly where the IA is a solicitor?
ans.) Yes; at the rate specified under the “Terms of Work” at Annex G1 of the Code of
Conduct.
B3) Q.) What if an SA wishes to appeal his fees and the IA does not think that he has a case
and the appeal is therefore pointless – must the IA appeal?
ans.) On a strict interpretation of the Funding Order (Article 29(1)(b)) it is the Instructed
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Advocate who must be “dissatisfied” with the fees. However paragraph 24 of the Protocol
implies a duty on the IA to bring an appeal on the SA’s behalf, irrespective of the former’s
view of the merits. The SA is required to produce all written material required (paragraph
25) and will be liable for any fees or costs incurred in the re-determination.
B4) Q.) What is the remedy for the SA if the IA (whether barrister of HCA) fails to submit
the claim within three months of the conclusion of the case and the LSC declines to pay?
ans.) Under Annex D of the Graduated Fee Payment Protocol, the IA will have accepted
instructions on the basis that the terms and provisions of Bar Council’s Fee Payment
Protocol apply. This includes the contractual obligation upon the IA for the timely
submission of the fee note (see paragraph 22 of the Protocol).
B5) Q.) What is the remedy for the SA if the IA, having received the fees, fails to pay the SA?
ans.) As above, under Annex D of the Graduated Fee Payment Protocol, the IA will have
accepted instructions on the basis that the terms and provisions of Bar Council’s Fee Payment
Protocol apply. This includes the contractual obligation upon the IA for arranging payment of
fees to any substitute advocate (paragraph 22 of the Protocol). Paragraphs 46-49 of the
Protocol set out the procedure for resolving disputes in relation to the division of RAGFS fees.
C) CHANGES IN REPRESENTATION:
C1) Q.) How do I inform the court of my withdrawal from a case?
ans.) As stated above, there is a centralised email address in each court centre to receive
notification of the identity of the Instructed Advocate, a copy of which can now be found as
Annex H of the Payment Protocol. Notification to the courts of the appointment and
withdrawal of Instructed Advocates can therefore be done by clerks by email or letter on behalf
of their barristers. There is no need for the barrister’s signature. Your attention is also drawn
to paragraph 7 of the Graduated Fee Payment Protocol, that the incumbent IA is required to
notify the court of the identity of the replacement IA within 7 days of the date of his
withdrawal.
C2) Q.) If, a few days before trial we advise on 2 counsel but are granted QC only what
happens?
ans.) As at present, the junior will not get the Basic Fee because he/she will no longer be
instructed for the main hearing. This situation is not specifically covered by the Protocol, but
is analogous to that in para 39 therein. Thus, the junior should look to the QC to pay any
Paid Retained Work or Paid Returned Work undertaken by the junior (or by any Substitute
Advocate on his/her behalf). It is an unlikely scenario in practice.
C3) Q.) How do advocates get paid under the new scheme for cases in which the
Representation Order is transferred from one firm to another and their services are no
longer required?
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ans.) A trial advocate may claim wasted preparation where he/she has been dismissed by the
defendant or his solicitor: Schedule 1, paragraph 15(1)(d) of the Funding Order, subject to
15(2) and (3).
C4) Q.) On a transfer of legal aid from one firm to another, is the RAGFS slate wiped clean
and your newly instructed counsel starts afresh, or does the accumulation of the
attendances run on even with a new firm and counsel taking over?
ans.) The number of attendances runs on, as opposed to starting afresh. It is, for AGFS
purposes, the same Representation Order - albeit transferred. Although it is unlikely to be
construed any other way, the point was never specifically addressed during the
negotiations.
C5) Q) When there is a cracked trial and some time later a fresh application for legal aid is
made and a new Representation Order is granted [in contrast to the scenario in question
C4 of a transferred Representation Order], is the RAGFS slate wiped clean and newly
instructed counsel starts afresh?
ans.) Yes. The remuneration relates to the Representation Order. See the definition of the
Instructed Advocate in the Funding Order paragraph 2, and see Schedule 1 paragraph 21(3).
C6) Q.) I accepted a brief from a solicitors and I used the Annex D letter of the Protocol
informing the solicitors that I was accepting the instructions on the basis that the terms and
provisions of the Protocol applied and that I would be the Instructed Advocate. I undertook
some preparation for the case and did a standard appearance. The solicitors then decided to
take the case back in-house and gave it to their solicitor HCA, who undertook the PCMH
and registered with the Court as the Instructed Advocate. The solicitor IA is refusing to pay
me for the work I did on the case, what can I do?
ans.) Once you had accepted instructions, you should email the Court, using the
procedure at Annex H of the Protocol to inform them that you are the Instructed
Advocate, rather than leave it to the PCMH. We also recommend that when you accept
work you use contractual terms (see Annex G2 of the Bar Council Code of Conduct).
C7) Q.) I accepted a brief from a solicitors and I used the Annex D letter of the Protocol. I
also emailed the Court, using the procedure at Annex H of the Protocol, informing the
Court that I was the Instructed Advocate. I then undertook preparation for the case and
conducted standard appearances and the PCMH. The solicitors firm had a solicitor HCA
who became available and the firm took the case back in-house. They therefore dismissed
me as the IA and the solicitor HCA registered as the new IA and undertook the trial. Were
the solicitors entitled to do this, and am I entitled to payment for the work that I did whilst I
was the Instructed Advocate?
ans.) The solicitors have the power to take the case out of the hands of the Instructed
Advocate, [CDS (Funding) Order 2007, Schedule 1 paragraph 20(9): "An instructed
advocate must remain as instructed advocate at all times, except where ...(b) he is dismissed
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by the assisted person or the litigator..."]. However, you may be entitled to claim for wasted
preparation [Schedule 1 paragraph 15] and should claim from the new IA for the hearings
you conducted [see the answer to question C4].
If the solicitors took the case back in-house solely in order to increase their profit and the late
change of representation in the case did not serve the best interests of the lay client the
solicitors may have been in breach of the Solicitors’ Code of Conduct (Rule 1.04 “You must
act in the best interests of each client.”).
C8) Q.) I was the Instructed Advocate and conducted the PCMH. However, despite what is
stated in the Consolidated Criminal Practice Direction (“IV.41.8 ...Resident Judges in setting
the listing policy should ensure that list officers fix cases as far as possible to enable the trial
advocate to conduct the PCMH and the trial”) the trial was listed on a date when I was
unavailable. I therefore had to instruct a Substitute Advocate to conduct the trial. I had
done a lot of preparation for the case (trawling through the unused, drafting the Defence
Case Statement, checking tapes, applying for disclosure, drafting chronologies and
schedules etc), am I only entitled to the PCMH fee and have to pay the rest to the SA who
conducted the trial?
ans.)There may be scope to claim for wasted preparation: Schedule 1, paragraph 15(1)(a) and
(b) of the Funding Order. In respects of the division of the money between IA and SA, Annex
A (page 19) of the Protocol states “The amount paid to the advocate undertaking the trial will
be the Total Fee less (a) any sums payable to other advocates for Paid Returned Work apart
from the trial, and (b) any sums which the Instructed Advocate is entitled to deduct for
Retained Work.”
D) TERMS OF WORK (PROTOCOL: ANNEX D):
D1) Q.) Does the Terms of Work letter (Annex D) have to be sent by the Instructed Advocate
or can it be sent by the Clerk to Chambers?
ans.) This can be sent by the clerk to chambers, acting on behalf of the barrister to whom
the instructions have been sent.
D2) Q.) Why does the Annex D letter have to be sent to all solicitors when it seems to only
apply to solicitors who intend to receive Instructed Advocate payments?
ans.) The letter has to be sent in order to bind both barristers and solicitors to the terms
of the Protocol.
D3) Q.) The Annex D letter is designed to be sent by the Instructed Advocate (IA) to the
solicitors. Should the Substitute Advocate (SA) also send the Annex D letter,
appropriately amended, to the IA to state that the SA is accepting work from the IA under
the terms of the Payment Protocol?
ans.) The fact that the IA has stated in the Annex D letter to the solicitor that the terms and
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provisions of the Payment Protocol apply in this case means that the Payment Protocol
will also apply in work subcontracted to the SA. There is therefore no need for the SA to
send a similar letter to the IA. That said, the SA may do so if they desire such additional
reassurance.
E) THE CHAMBERS FEE ACCOUNT (PROTOCOL: ANNEX E):
E1) Q.) Is the chambers fee account mandatory?
ans.) No. It is a strongly recommended practical solution to the different challenges thrown
up by the arrangements under the new Advocates Graduated Fees Scheme. The chambers fee
account is a way of ring-fencing payments made under this scheme. This separation has to
be clear because for the first time a proportion of any cheques coming into chambers in the
name of the Instructed Advocate could be destined for another advocate, possibly even to an
advocate outside of your chambers.
E2) Q.) If a chambers has a fees account with largely the same attributes of the
recommended chambers fee account, will that suffice?
ans.) The chambers fee account model is strongly recommended but not mandatory. If
chambers have a communal fee accounting system in place which allows fees for returned
work to be paid to other advocates and chambers is confident that it fulfils the various
requirements, then there is probably little else that could be expected from chambers.
E3) Q.) Why does Annex E Chambers Fee Account still oblige chambers to inform all
paymasters (HMPMG, CPS, LSC, HMCS, etc) of its intention to create a dedicated fee
account when this applies only, albeit at moment, to defence fees?
ans.) At the moment, the new arrangements apply only to criminal defence work. However,
it is anticipated that the CPS will follow suit in the future and the timing for the
achievement of parity is being investigated.
E4) Q.) In a chambers doing mixed work, does the chambers fee account only apply to
criminal defence work or should all fees be dealt with via this new account?
ans.) This is a decision for chambers. Some sets, who practise predominantly in crime,
may make the chambers fee account applicable to all its work. Others, conducting a
variety of work, may decide to apply the account only to criminal defence fees.
E5) Q.) If a chambers doing mixed work decides that all fees should be dealt with via the
new chambers fee account and the constitution is amended accordingly, if an individual
tenant does not agree, presumably s/he must leave chambers?
ans.) This is a matter for the chambers constitution. However, if the constitution is
amended and a member does not agree to be bound by it then, presumably, it would be
difficult for him/her to remain a member of those chambers.
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E6) Q.) Chambers Constitution. Our constitution provides for amendments to its terms
upon a 75% majority vote. The model "enabling provision" on page 27 is split into three
parts a) b) and c).
Is the subject matter of each part mandatory?
In the event of the vote for amendment on any of the three parts not being carried,
what is the sanction against chambers for non-implementation of the "enabling
provision?
ans.) The model “enabling provision” is simply a recommended draft of that part
constitution taken from an actual chambers constitution making it a tried and tested
version that others may wish to adopt. There is no sanction against chambers not adopting
this draft. It is worth bearing in mind that if chambers cannot agree to amending the
constitution to allow for the creation of a chambers fee account, then there may be
difficulties with the banks in setting up the account as the banks require sight of an
amended constitution before set-up.
E7) Q.) Annex E of the Protocol, Page 27 "Steps” Each member of chambers has to "sign to
show consent" for the constitution enabling provision. Does this mean each and every
member of chambers or just members of the criminal team?
ans.) All members of chambers who will be paid through the chambers fees account will
need to sign the amendment to the constitution. As said above, chambers’ banks will
demand sight of the appropriate change to the constitution indicating the agreement of
members to these arrangements.
E8) Q.) Annex E of the Protocol, Page 27 "Steps” Each member must supply his / her bank
account details to the administrator of the fee account. Does this mean each and every
member or just the criminal team?
ans.) See above.
If some refuse, what is the sanction (i) against those members (ii) against chambers?
ans.) See above.
E9) Q.) If the scheme is only a recommendation and not mandatory, cannot we apply the
system for adjusting payments between barristers which is contained in the Code of
Conduct at 406.1 and which is repeated in the Protocol at page 9?
ans.) The Code of Conduct is not a substitute for any new process; it is simply a
professional obligation of all barristers, which has not been changed in any way by the
introduction of the Protocol. The Protocol is the recommended new process.
E10) Q.) Overall, if chambers does not set up a fee account in accordance with the
protocol and/or does not implement the three-part wording of the "enabling provision,”
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what sanction would be applied to chambers as a whole for its failure?
ans.) There is no sanction applied to chambers for not working in accordance with the
Protocol. However, if the majority of chambers do not operate in a consistent and disciplined
way in accordance with the Protocol, it is almost certain that there will be difficulties in
doing business with other chambers, more problems between advocates and the resulting lack
of consistency can only lend weight to the LSC’s professed desire to move swiftly to “One
Case, One Fee” (where the fee for the whole case is paid to the solicitor) and best value
tendering.
F) TAXATION (PROTOCOL ANNEX G):
F1) Q.) How is IR 35 affected by the new arrangements?
ans.) The new arrangements are not affected by IR35. It was introduced by HMRC a few
years ago to combat a perceived loss of revenue. It had become common (particularly in the
IT industry) for individuals to set up a limited company to take on a contract that was
effectively an employment. This Ltd Company received the income from the contractor and
then paid this out to the individual often in the form of a dividend. The contractor benefited
from not being liable to employers national insurance. The sub-contractor benefited from
not being liable to the employees contribution by taking a dividend. Furthermore expenses,
often travel from home to office, could be claimed by the company thus reducing the tax
burden. These expenses not normally being allowable for an employee. IR 35 refers to
regulations that set out a procedure that companies falling within this type of scenario have
to follow. The result of which means that PAYE is imposed on the company even if no
salaries are paid. Typically IR 35 applies to limited companies but the rule in fact applies to
any intermediary so can apply to partnerships and unincorporated organisations but not
sole traders/practitioners. Unfortunately the term IR35 has become confused and is often
applied to any circumstance where there is a doubt over the self-employed/employed status
of an individual. IR35 or any question of employment do not, in our view, apply in any way
to the fees protocol and fee sharing. Barristers are self-employed. The manner in which fees
are paid cannot alter that fact. The reference to the substitute advocate as being a sub-
contractor should not cause advocates to jump to the wrong conclusion. The only other
possible concern may be that Chambers acts as a form of agent by collecting fees and
subsequently paying out those fees to the barristers. However the act of collecting fees does
not alter the relationship between the barrister and his/her client which is one of self-
employment and thus provided chambers is purely a conduit, there should not be any
problem.
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