Steering VHCC reform in the right direction

It has been over a year since the Legal Services Commission (LSC) started its review of Very High Cost Cases, and only 110 barristers and two QCs have signed up to the new panel.

With around 100 such cases passing through the England and Wales court system each year, this is a shallow pool from which to draw appropriately qualified representatives to handle these complex cases. In fact some might say it is more of a puddle '“ one that has collected around the LSC's feet while defendants are left high and dry. Meanwhile the dispute has added to wider concerns about the future of the self-employed Bar.

Strongly criticised as 'derisory' for the amount of work involved, the rates offered under the VHCC panel scheme have not attracted sufficient numbers of barristers with the right skills and experience. Charging by the hour is perceived by many to discourage efficiency and encourage inadequate case preparation.

It is against this background that the Rhys Jones murder trial, which began in Liverpool Crown Court on 2 October, was downgraded from a VHCC to an ordinary case because of the lack of an experienced counsel to undertake the work. And there are further major trials allegedly threatened with delay because of the dearth of barristers putting themselves forward for the work.

A steering group comprising the LSC, the Law Society, the Bar Council, the Ministry of Justice and other relevant parties, and chaired by Desmond Browne QC, has been looking again at the scheme, and hopes are high among the profession that the current regime will be replaced with a fairer and more workable scheme for all.

But according to David Keegan, the LSC's director of high cost case contracting, the rates were set at the appropriate level. 'We offered three rates to bid. The top rate under the previous scheme was £160 per hour; we offered £155, £150 and £145. We found that we had sufficient capacity at £145,' he told Solicitors Journal.

Barristers, however, say that they were not given a choice of rates or consulted by solicitors, and in most cases solicitors did not (and were not obliged) to tell counsel what rates they had bid at. So the argument would be that at no point did counsel have a choice or any control over what was bid as they were not bidding directly to the LSC but as part of an individual solicitors' bid.

Keegan disagrees. 'They bid as a team, signed the bid forms and knew what the prices were that were being bid.

'Solicitors submitted the bid form along with information on the experience of the barristers they were working in a team with. The vast majority of those advocates were barristers in sets of chambers,' he says.

So was the LSC surprised at the relatively small uptake of barristers to the VHCC panel? 'Yes,' continues Keegan, 'we were very surprised, given that 2,300 of them bid.'

A question of quality

In Keegan's opinion, the advantage to a barrister of being on the panel is that 'he or she gets access to this work, which is some of the most complex and interesting work available', while 'defendants get quality advice and representation from barristers and solicitors that are experienced in this area of law.'

But surely, the problem is that not enough barristers signed up to the panel, therefore defendants are not in fact getting that quality of representation? In response to barristers not signing, the LSC is allowing solicitors to go off-panel and use non-panel advocates. The proviso is that a solicitor's firm has to demonstrate the experience of the barrister they wish to instruct case by case.

However, any non-panel barrister taking on a VHCC will receive the same hourly rates as a panel advocate would, and so there is an argument that while allowing solicitors to go off-panel widens the pool of potential advocates, it does not fundamentally make VHCCs any more attractive to the Bar as a whole.

This aside, Keegan feels that the LSC's aims in establishing the panel have been met. 'Our overall aim was setting up a panel of specialist litigators and advocates and having them bid for work at the hourly rate,' he explains. 'The panel is presently operating on that basis.'

Keegan also dismisses Peter Lodder QC's recent comments to The Times, in which he suggested that barristers will only pocket about half of the £91 an hour rates for QCs after paying overheads, expenses, tax and so on, and that therefore 'you might be better off buying a pair of pliers and working as a plumber'.

'Peter Lodder QC was talking in respect of the QCs who earn £50,000 to £500,000 for a VHCC case,' says Keegan. 'We don't accept that the rates are derisory.' He points out that the LSC does pay expenses if a barrister is working out of area.

But some at the Bar have expressed concern that the LSC doesn't care about quality, only budgets. 'The whole of the VHCC panel scheme demonstrates that this is not the case,' says Keegan. 'The whole basis was to create a panel of experienced solicitors and barristers.'

Asked whether the LSC took full account of the Bar's concerns with regards the current regime, Keegan said that 'the Bar Council has proposed that there should be a scheme that moves away from hourly rates, and we are presently involved in a working group to look at such as scheme for the future. That working group is going very well, but it is a major task of work to complete. The future scheme we are looking at is based on stages and payments for activities in those stages, and we are very keen to develop it.'

Apart from that, Keegan says he is not aware of any other concerns at the current time.

'There was an issue of time recording at the time, and we amended the contracts to reflect this,' he says.

Solicitors Journal's sources at the Bar, though, express concern that the VHCC contract managers have no legal training, which has created a difficult relationship between contract managers and barristers, with the latter having to spend too much time explaining what needs to be done and why. They say that the level of bureaucracy and nit-picking is counter-productive.

But Keegan does not agree that there is unnecessary bureaucracy in the case planning.

'We intend to agree the case plan as quickly and efficiently as possible,' he says. 'Of the contract managers we have, many have been doing this kind of work for a considerable time now, so have built up considerable expertise and experience, and we do have solicitors on the team that they can speak to about any particular complex issues of law that need resolution.'

And when it comes to the new regime, the LSC and the wider steering group are 'keen to simplify it as far as possible, hence the interest in a new payment scheme that might do that.'

Where next for fees?

When prompted for his thoughts on barristers' expectations about the new reforms, Keegan replies that 'there are some things you may be better off asking them. The LSC's focus at this point is on working on a scheme that is acceptable to all, and any scheme has to be acceptable to the Law Society as well as the Bar.'

So what are the options being discussed by the steering group?

'We have working groups with specialist representatives '“ experienced practitioners in fraud, murder, violence and terrorism '“ and we are looking at how to create a scheme based on stages and activities that would be effective.

''Graduated' would be the closest word to describe the kind of fee scheme we are looking at '“ for example, related to the amount of documentation you have to read.'

Does Keegan think that more money needs to be injected into the system in order to make it workable? 'Historically we were spending £100m per year on 100 cases. That takes up a very large proportion of the legal aid budget, and we are seeking to obtain value for money through these reforms,' he says.

Keegan states that the LSC has no specific targets at this time in terms of the numbers of barristers it hopes to get on board once the new regime is in place. He says simply, 'we need enough barristers on board effectively to set up 400 defence teams a year.' He wastes no time in adding, 'of course, we had 2,300 barristers bid [in relation to the current panel], which was quite sufficient.'

And what about interim measures that might be put in place to deal with any cases held up as a result of the dispute over fees? Well, Keegan does not accept that there are delays currently in cases going to trial, 'it's too early to say that there have been', he says. The Rhys Jones case reverted back to the old graduated fee system 'on the basis of a decision the LSC made.

'We were subject to a legal challenge, a judicial review relating to the choice of solicitor. The challenge came up and the court could not hear it until very shortly before the trial, so we compromised and agreed with solicitors how to resolve that.

'To ensure that the trial went ahead, in the interest of justice we decided to treat it not as a VHCC and therefore to pay using the graduated fee scheme. The LSC is working with solicitors' firms to support them in obtaining representation from barristers. But as I said, we haven't currently got a backlog or a delay to any trials.'

The scheme is largely perceived to be a failure by those at the Bar. Determining who is to blame is not something Keegan is prepared to become embroiled in.

'I am not in the business of placing fault in this,' he says.

'We are disappointed that the Bar didn't sign the contracts, and we are working in a constructive way to move forward.

'We hope to resolve this as soon as possible so that everybody feels positive about the future,' he concludes.