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The Final Report responds to criticisms from some quarters that the Interim Report is
deficient in failing to deal with conditional (or contingency) fees and higher rights of
audience for solicitors. Each of these matters involves complex questions and falls
outside the Working Party's remit.
However, in so far as it is suggested that they
necessarily represent an expedient way to reduce costs in civil litigation, that
proposition is not accepted.
The Working Party, with the exception of one member, recommends adoption of
Proposal 52 after further consultation as to its implementation. This involves
solicitors and barristers being placed under an obligation to provide their clients with
full information as to the basis on which fees and disbursements will be charged;
giving their best estimates of their fees and other costs to cover various stages of the
litigation process; and updating or revising information and estimates as and when
circumstances require, giving reasons for any such changes. It is envisaged that
solicitors should have a duty to provide such information and estimates upon receiving
instructions and that barristers should provide the same via their instructing solicitors
upon request by the client or the solicitors.
After reviewing previous unsuccessful attempts by the Bar Council at introducing
relevant reforms and surveying the published views of various sectors of the public on
the matter, the Interim Report canvassed in Proposal 53 the removal, by legislation if
necessary, of restrictive rules currently forming part of the Bar Code which prevent
publication by those barristers who may wish to do so, of information about their
practices, fees charged and experience or expertise in a seemly and properly regulated
manner.
However, in view of strongly divergent views, the majority of the Working Party
considered it inappropriate to reach a concluded view at the present stage. No one
disputed that transparency in relation to barristers' fees is desirable, but the Working
Party (except two members) considered it preferable to recommend that further
consultation should be undertaken by the Chief Justice as to whether rules permitting
the publication by barristers of information about their fees are desirable, leaving all
options open for the present. The Working Party so recommends.
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