Dear members,
One of our members was told by their contract manager, in respect of a matter where a trial date had been set, ‘if you cannot instruct Counsel due to the current action she (the CM) will have to arrange representation by the PDS.’
We then wrote to the head of the LAA about this as follows:
“In our view that is completely over stepping the mark. It is not for the LAA to impose choice of advocate or representation upon a Defendant. It is one thing to remind of the availability of the PDS and another to suggest that
the contract manager will arrange representation by the PDS.
Whilst members may be concerned that the Bar action is being seen by the LAA as an opportunity for expansion of the PDS, can you confirm what advice/instructions has been provided to contract managers? It is not for the LAA to decide
who undertakes representation.”
The LAA’s response was:
“It is the contract managers role to ensure that firms fulfil their contractual obligations and in this scenario
·
Clauses 7.2 to 7.5 specifically relate to instructing Counsel or in-house advocates in Crown Court cases.
·
Clause 7.5, together with Clause 8.3(m), requires a provider to make a record of the advice they give to their client about the choice of Counsel or in-house advocate instructed and the enquiries they made of other Counsel
and in-house advocates
·
Clause 3.4 may be of relevance should Counsel or an in-house Advocate have accepted instructions and returns the case.
·
The CM may also remind the firm as to the case of Crawley et al
https://www.judiciary.gov.uk/wp-content/uploads/2014/05/r-v-crawley-others-21052014.pdf
but – to confirm – it is for the firm to decide who represents and to discharge their contractual and professional obligations.”
The LAA have clarified how they see our obligations. The clauses referred to are from the 2017 Crime Contract Standard Terms. They are copied below.
The case of Crawley related to a successful appeal by the FCA against HHJ Leonard’s decision to stay a VHCC case during the bar’s refusal to accept new instructions following
cuts of 30%. In commentary it suggested QCs at the PDS were of equal merit to those in private practice and defence solicitors should instruct them in the case in question.
I would suggest members consider this information when making decisions about their legal aid cases. It is perhaps worth noting that the PDS might have been valuable to mitigate
the action of the VHCC strike but in this broader action it is unlikely to have a significant impact. Sooner or later there will not be enough advocates for all the trial work that needs cover.
Have a pleasant bank holiday weekend,
Mark Troman
3.4 If an Approved Third Party, Agent, Counsel or a sub-contractor ceases providing services to you, you are responsible for ensuring that you continue to fulfil your obligations
under this Contract. You must also promptly notify us if you become aware that you are unlikely to be able to fulfil your obligations under this Contract due to the expiration or termination of arrangements with an Approved Third Party, Agent, Counsel or any
of your sub-contractors.
…
Clients’ interests and independence
7.2 In performing Contract Work, you must act in the best interests of your Clients and be uninfluenced by any factor other than the Clients’ (and potential Clients’) best interests. Any breach by you of this
Clause 7.2 will deemed to be a Fundamental Breach.
7.3 Where you instruct Counsel or in-house advocate to conduct Crown Court advocacy services, before giving such instructions you must consult the Client about the use and the selection of Counsel or in-house
advocate and advise the Client of:
(a) the name;
(b) status;
(c) experience; and
(d) suitability,
of this Counsel or in-house advocate to conduct advocacy in each such case having regard to the nature of that case and its complexity and the existence of alternative Counsel or in-house advocate whom the Client
may choose to be instructed (subject to availability). In circumstances where you have determined through your reasonable enquiries that there is no alternative Counsel or in-house advocate actually available, you must also advise the Client of that fact.
7.4 Where Counsel or in-house advocate is instructed pursuant to Clause 7.3, if the chosen Counsel or in-house advocate becomes unavailable you must take all reasonable steps to instructs another Counsel or
in-house advocate of equivalent standing and, so far as is practicable, advise the Client of the merits and suitability of the proposed replacement.
7.5 You must keep a Record (in accordance with the provisions of Clauses 8.3 and 8.4) to demonstrate your compliance with Clause 7.3.
Mark Troman
Solicitor & Higher Courts Advocate
Powell Spencer & Partners
270 Kilburn High Road
London, NW6 2BY
DX:123862 Kilburn 2
T: 020 7604 5606
Securemail:
crime.dept@psplaw.cjsm.net