Memo admits barristers charge 'ludicrous' fees

Some barristers are claiming "ludi- crously" high legal aid fees, a secret report prepared for the Bar Council has admitted.

They have claimed cash to which they are not entitled and some QCs have found that junior barristers working with them are putting in claims for huge sums.

The admission was made in a secret memorandum sent to members of the Bar Council's professional standards committee, which is preparing a response to the British Government's high profile campaign against legal aid fees earned by barristers. Mark Stobbs, head of professional standards at the Bar Council, says in the memo there are "anecdotal accounts of barristers claiming fees where they do not appear entitled to do so, or of silks discovering that their juniors are claiming ludicrously high amounts".

His memo adds: "One barrister sent in a response to the Inland Revenue.. indicating that he always inflated his fees knowing that they would be taxed down." The memo, disclosed in The Lawyer magazine, was sent as the Bar Council prepares a response to the drive by Lord Irvine of Lairg, the Lord Chancellor, who wants to see a crackdown on overcharging.

A list of about 20 barristers, whose fees have been heavily cut, has been given to the Bar Council by the Lord Chancellor's Department.

The list, which has not been made public, is made up largely of barristers whose claims for legal aid work was cut by at least 50 percent by officials in the department.

The Bar is considering making it a professional rule requiring barristers to "blow the whistle" on any colleague known to be submitting excessive claims.

It is also studying whether to make it a disciplinary offence for barristers to overcharge by 50 percent or more and to make barristers produce detailed work schedules for their cases.

A barrister found breaching the discipline code could be fined or suspended from practising.

At present barristers who claim excessive fees can be disciplined only if they have been dishonest or if there is a breach of legal aid regulations.

A statement from the Bar Council said: "Any barrister who deliberately over-claims for legal aid work is bringing the profession into disrepute and we have always made clear that it is totally unacceptable.

We will not let the actions of any such barrister be used to undermine the legal aid system which underpins justice."

Under existing rules barristers put on a claim for legal aid work to the Lord Chancellor's Department based on preparation, type of case and days in court.

(Courtesy - The Times London)

Judgments

Sri Lanka Supreme Court/ FUNDAMENTAL RIGHTS

Range Bandaralage Palitha Vs. Gen. Anuruddha Ratwatte, Deputy Minister of Defence and Others

SC Application No: 128/96

Before Fernando, ACJ

A.S Wijetunga, J

Asoka de Z. Gunawardena, J

(Decided on: 26.09.1997)

Article 12(1) when confidential material could be submitted to court/ Transfer of police officer cannot be on ground of vague and unsubstantiated complaints/circumstances in which such transfer can be misuse of discretion/Delegation of powers by the Public Service Commission to any public officer are held in trust by such officer and must be exercised with due care, a contravention of such duty could render such officer liable under Article 60 of the Constitution.

Facts

The Petitioner who was the OIC of the Weerambugedra Police Post in the Kurunegala district alleged that he had been arbitrarily transferred on order of the 2nd Respondent IGP to Moratuwa as a sub inspector (supernumerary).

He alleged that this transfer had not been in terms of the Establishments Code and the Departmental Regulations but had been at the instance of the 3rd Respondent who was the SLEP Chief Organizer for Polgahawela and that the IGP had acted arbitrarily in the matter the matter.

Judgment of Fernando ACJ

Examining the reasons given by the IGP for the Petitioner's transfer, the Court pointed out the IGP's version was that two reports made in October1994 by the Petitioner's superiors contained material adverse to the Petitioner and that he had also been "made aware" of complaints against the Petitioner after October 1994.

The IGP stated that material establishing the latter fact could be made available to Court, but the request was not allowed on the basis that "neither natural justice nor the rules of procedure applicable to fundamental rights applications permit any party the unilateral privilege of deciding that he will furnish evidence in support of his case for the perusal of the judges alone.

This Court has recognized that consideration of national security may permit an exception but even then the material relied on must be furnished to Court before the hearing. Here, national security is not involved and the material was not tendered before the hearing."

Again, it was a fact that the IGP had not given the Petitioner even an inkling that his transfer was on account of such complaints, pretending instead that it was a normal annual transfer.

This was held to preclude the IGP from now maintaining that the transfer was on disciplinary grounds.

Further, it was established that all the complaints against the Petitioner before October 1994 had not been poceeded with either because they were withdrawn or because there was insufficient evidence while even if there were subsequent complaints, the question was asked by Court as to why no action was taken at that time instead of months later? Why, indeed, was there no charge sheet served on the Petitioner on these alleged complaints during the 18 months that lapsed between then and the hearing of the application?

Held that the summary transfer of the Petitioner was unreasonable on the material available to the IGP and it was also a misuse of discretion to withhold from him, the true reason for the transfer, because it deprived him of the opportunity to rebut it. The decision to transfer was thus arbitrary, capricious and unreasonable and in violation of the Petitioner's rights under article12(1).

It was further pointed out that in making the impugned transfer order, the 2nd Respondent IGP was acting by virtue of powers delegated to him by the Public Service Commission, which powers are held in trust by him and should have been exercised with due care for the purpose for which they were entrusted to him by the PSC and with the same independence which the public have a right to expect, which Article 60 of the Constitution protects on pain of punishment."The evidence in the case shows that what happened was not as a result of a mistake or an error of judgment but of a misuse of those powers, of a kind which demoralizes and demotivates the victim and indirectly the entire service," the Court stated.

The 2nd Respondent IGP was held liable to pay Rs 15,000/= costs personally by virtue of his affidavit suggesting that he gave his "conscious attention" to the relevant facts and not that he acted on material furnished to him by subordinates. Compensation of Rs. 25,000/= was ordered to be paid to the Petitioner by the State.

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