ISSUE 81


SPRING 2013


In this issue Committee Reports p.4


Implications for a multi- generational profession p.6


The newsletter of the City of London


Solicitors’ Company and the City of London Law Society


CitySolicitor www.citysolicitors.org.uk


Opera: Benjamin Britten, Verdi and Wagner p.8


Ski Championships p.12


Could solicitors be regulated as easily as cars? p.16


At last: CLLS specimen terms for solicitors and barristers


Simon James, Clifford Chance LLP Chairman, CLLS Litigation Committee,


Historically, barristers have not entered into contracts with their instructing solicitors. Indeed, until the coming into force of section 61(1) of the Courts and Legal Services Act 1990 and resulting changes to the Bar’s Code of Conduct, they were probably unable to do so. The dangling pocket on the back of barristers’ gowns is supposedly where clients would insert an honorarium in non- contractual appreciative thanks for the barrister’s work (though it has also been argued that the “pocket” is in fact a hood to be worn in mourning for the death of Charles II in 1685). If it was a pocket, it avoided the hands of a gentleman being soiled by overt contact with the folding stuff but, whether or not a pocket, the lack of a contract meant that a barrister was unable to sue if the client proved insufficiently grateful and those instructing a barrister were confined to remedies in tort if the barrister’s services proved inadequate.


Whatever its origins, the dangling pocket has long since fallen into desuetude. The absence of a contractual relationship has now, finally, followed suit. From


31 January 2013, contracts have become the norm for barristers. But contracts must have terms. To assist barristers and solicitors to agree terms, the CLLS has negotiated with Combar standard terms that are intended to offer a balanced starting point for negotiations in individual cases. Reaching this point has, however, not been straightforward.


In July 2010, the Litigation Committee responded to a consultation paper from the Bar Council on standard contractual terms for barristers. The Committee agreed with the Bar Council that it was anachronistic that barristers did not enter into contracts with those who instructed them. Contracts form the basis of relationships in every other sphere of commercial life, and there is no reason why the Bar should be different. The Committee also agreed that if barristers were to enter into contracts, practicality required that there be standard terms that parties could use as a starting point for negotiations. It would be uneconomic to commence negotiations with a blank sheet of paper every time a barrister was instructed.


That, however, was as far as the consensus between the Committee and the Bar Council went. The Committee considered that the terms proposed by the Bar Council were too one-sided to form a satisfactory starting point for negotiations on any particular case. This was not surprising since the Bar Council had drafted the terms on its own, without input from the Bar’s customers. In most industries where standard contractual terms are required, the two (or more) sides of the industry negotiate in order to reach a balanced solution that both sides can live with. The Committee considered that this was what should happen in this instance, and added that the Committee was keen to take part in such negotiations.


The Committee received no response from the Bar Council. But, having seen the Committee’s response to the Bar Council, Combar made contact with the Committee. Combar asked if the Committee was prepared to negotiate with Combar to see if it was possible for representatives of the two sides


(Cont. on page 3 The City of London Solicitors’ Company


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