Family Barristers Face Anti-Competitive Charge

Law Society Gazette - Thursday 3rd July 2003

A consortium of 12 councils in the north-west is threatening to report the family bar to the Office of Fair Trading as the row over the consortium's plans to control its spend on counsel in child care cases escalates.

The consortium originally announced plans to introduce a system of standard fees across the councils, managed by First Law, the legal tendering and audit service set up by solicitor Anthony Armitage (see [2003] Gazette, 13 March, 3).

First Law claims that there is evidence of an anti-competitive agreement between barristers that they will not become involved in the scheme.

First Law initially approached 16 sets of chambers with which the councils dealt and pointed out that it received several initial indications of agreement to the scheme; however, the Bar Council and Family Law Bar Association (FLBA) then came out in strong opposition.

In a letter to heads of chambers, Bar Council chairman Matthias Kelly QC said it was concerned that the rates proposed were 'unreasonably low for the level and importance of the work' and that the scheme was inflexible. However, he said it was for individual barristers to decide.

First Law then published a tender notice in The Times, opening the scheme to any child care barrister in the country, but not one responded.

In an earlier letter to First Law in March, the Family Law Bar Association said it had agreed that any chambers which conducted discussions with First Law would not agree the terms proposed.

First Law has taken advice from a top City firm, which says this is evidence of a collective agreement in breach of the Competition Act 1998.

Mr Armitage said the later conduct of barristers in not responding to the tender was circumstantial evidence that the agreement was still in force. He is calling on the Bar Council to take steps about this; otherwise, he will consider a complaint to the Office of Fair Trading.

A Bar Council spokesman said it was clear from the Bar Council Web site that it is for individual barristers to decide whether to become involved with the scheme. 'The objectionable aspects of the original scheme were removed,' he said.

Ernest Ryder, chairman of the Manchester FLBA, said there was 'no agreement of any description' between barristers. Both he and the leader of the northern circuit wrote to members, saying they must make up their own minds on the scheme, he said.

The bar also argues that the councils' agreement on fee levels breaches the 1998 Act.

By Neil Rose