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26.1
The consultation response
The predominant response was one opposed to Proposal 54.
Barristers contended
that such a rule has no place in relation to fees agreed between
a barrister and his instructing solicitors.
(a)
As required by the Bar Code,
barristers are generally instructed and
remunerated by a separate fee agreed in advance for each item of work
undertaken. The solicitor, it was said, could be expected to reach an agreement
acceptable to the client and to obtain the actual or implied consent of his client
before doing so. It was argued that it would be most unfair to allow such an
agreement to be open to challenge at large after the barrister has done the work
in accordance with what was agreed.
(b)
One set of chambers argued that such a rule would also be undesirable as it
would be likely to be abused, particularly in relation to younger, less well-
established barristers with a view to forcing them to discount agreed fees.
(c)
It was furthermore argued that such a rule is unnecessary in relation to
barristers' fees. The general rule is for agreement in advance. If an agreement
involved hourly charges, a cap on the fees chargeable could be agreed in
advance. If any dispute arose as to whether the amount of work done or the
charges put forward were justified, this could be referred to a "grey areas
committee" jointly set up by the Bar Association and the Law Society to rule on
such disputes.
Solicitors' views were divided. The Law Society expressed support for the proposal
on condition that there should not be any presumption, either in favour of or against,
reasonableness. However, all the other firms and some specialist associations
responding
were against the proposal.
Notes
By the Bar Association, the BSCPI and a set of barristers' chambers.
§120.
Including the HKMLA, the HKFLA and three firms of solicitors.
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