Traditional Basis of Charging Fees
A. Solicitors
In 1843, conveyancing fees reflected the length of documents, a recipe for both verbosity and complexity.[1804] [1805] This led to the introduction of ad valorem fees, which varied according to the value of the subject matter dealt with, for sales, purchases and mortgages.9 These scale charges dated back to the Solicitors Remuneration Act 1881 and the Solicitors’ Remuneration Order 1883. Practice Rules passed in 1936 prevented solicitors from acting at less than scale fees fixed by the court or prevailing in the area where they practised.[1806] In the mid-1930s, solicitors’ professional rules fixed fees to prevent undercutting.[1807] Scale fees, which might be thought to be aimed at maximizing income, were justified on the ground that undercutting encourages ‘fee shopping’ and low standards of work. These matters were considered a proper issue for professional codes of conduct. By 1963, nearly all local law societies had set their scale fees at the maximum allowed by the remuneration orders. Under pressure from consumers, the Law Society abolished the scale in 1972.[1808] In 1996, some solicitors tried to restore fixed fees for conveyancing. The Law Society Council avoided what would have been a controversial and, some would say, anti-competitive move.[1809] Time charging, hourly fees paid for the actual work done, is now the usual basis of charging fees for solicitors. The fees element of the bill is based on the number of hours the lawyer spent working on the matter. The amount at which time is charged can vary dramatically according to different areas of work, type of firm and experience of lawyer. To the total produced by the number of hours worked is added an ‘uplift’. This is usually a percentage based on the difficulty of the case. B. Barristers Barristers normally quote a fixed fee for a written advice or piece of drafting and a daily rate for court work. While this may be based on an estimate of how long a normal day will be, the fixed fee will still be charged if the judge sits longer than anticipated or rises early. They are paid by fixed fees in some civil work, especially family matters, and in legally aided criminal work. In general, however, barristers were not allowed to charge a fixed fee over a fixed period of time, irrespective of the amount of work done.14 Barristers have traditionally attempted to avoid the problems of conflict of interest inherent in fixing fees by denying any involvement in the issue. Their fees were negotiated by their clerks and are regarded as ‘honoraria’ which give rise to no legal liability on either side. This was used, inter alia, to justify the immunity of barristers for liability in negligence for court work,15 since abolished.16 Under the Courts and Legal Services Act 1990, section 61, barristers were given the power to enter into binding contracts. This was eventually reflected by the Bar Code of Conduct in an annex setting out the contractual terms of work between barristers and solicitors.17 IV.