Law: `QC income is confused with turnover'

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Antony Shaw QC, co-editor of `Archbold' and author of guidelines for barristers' claims for legal aid fees in the High Court, replies to criticism of the system.

IT IS not surprising that there has been a good deal of interest in next week's inquiry into barristers' fees - because there is endemic confusion and misunderstanding about how they are calculated.

In fact, legal aid fees for criminal work in the Crown courts are based upon longstanding statutory criteria of reasonable remuneration for work done under a legal aid order. All such fees are taxed, ie assessed by officers of the Lord Chancellor's Department (LCD). They operate within regulations approved by Parliament assisted by detailed guidelines, the Directions for Determining Officers, published by the LCD.

Barristers who are unhappy with an assessment can ask a taxing officer to redetermine their fees, to ask for written reasons for the assessment, and, if still not satisfied, apply to a taxing master of the High Court. The latter has a judicial function and the LCD has a right to be represented before him. Appeals on points of principle can be referred to a single judge of the High Court.

The House of Lords currently operates outside this system, with fees in criminal cases taxed by an expert taxing officer appointed by the Clerk of the Parliament. There is no right to seek reassessment, only appeals on points of principle.

Moreover, income is confused with business turnover. VAT is included in gross receipts. The earnings attributed to hospital consultants, in comparison, do not include the costs of pension provision, support staff, consulting accommodation and expenses. To enjoy that level of salary and pension, and taking overheads into account, a QC would have to gross about pounds 200,000 pa - and still would not enjoy the same job security and regular income, health benefits and paid holidays. Nor are all of a silk's working hours chargeable.

The vagaries of the LCD computer and accounting system offer a further explanation for the impression that silks receive huge fees. Large cases, which represent a year's work or more in preparation and trial, obviously generate large fees. They are paid partly by instalment and partly on taxation, which can occur 12 months after the date of trial. However, the LCD computer posts everything paid in a case to the date of the last determination. So if a counsel appeals, everything paid in the preceding years, together with any sum awarded on appeal, is posted to the date of the appeal - perhaps two years later.

All a barrister has to do to appear in a "name and shame" list is to appeal the taxation of one long and complicated case, and not appeal the next. The fees for both cases, representing two or three years' work and receipts spread over several years, then appear in one accounting year. Distortions the other way, showing barristers receiving derisory fees, do not get published.