Kearns v General Council of the Bar

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMR JUSTICE EADY
Judgment Date26 Jul 2002
Neutral Citation[2002] EWHC 1681 (QB)
Docket NumberCase No: HQ0104976

[2002] EWHC 1681 (QB)

IN THE HIGH COURT OF JUSTICE

Queen's Bench Division

Before

Mr Justice Eady

Case No: HQ0104976

1. Robert Kearns
2. Kearns and Company
3. Kearns Agency Limited
Claimants
and
General Council of the Bar
Defendant

MR J PRICE QC (instructed by Messrs Peter Carter-Ruck & Partners) appeared on behalf of the Claimants

MR A CALDECOTT QC with MR R ELLIOTT (instructed by Messrs Berryman Lace Mawer) appeared on behalf of the Defendant

Friday, 26th July, 2002

MR JUSTICE EADY
1

This libel action arises out of an unfortunate misunderstanding over changes introduced into the solicitors' profession and their impact upon the proper basis of professional dealings with the Bar. Although the matter now before the Court turns almost entirely on arguments as to the law of privilege, it is clearly important that I should set out in a little detail the factual background giving rise to the dispute.

2

As is well known, the General Council of the Bar (the Bar Council) is the body which has responsibility, among other matters, for implementing general policy with regard to the Bar and for maintaining the professional standards and independence of the profession. It is in fact an unincorporated body. Nevertheless, it has been sued in these proceedings in respect of a letter written on 24th September 2001 by Mr Mark Stubbs, who has the function and title of Head of its Professional Standards and Legal Services Department. It may well be that for the sake of good order Mr Stubbs will be substituted as the defendant, since he is personally responsible for the letter he wrote, and is obviously a legal persona capable of being sued in respect of an allegedly defamatory publication. At all events, this unhappy history began with a letter being sent by a member of the Bar on 12th September last year seeking guidance, entirely properly, from his professional body on a recent and unfamiliar development in the way certain members of the Bar, including in his own chambers, were being instructed. The identity of the writer of that letter is irrelevant for present purposes and I intend to refer to him simply as "the barrister". He wrote to Mr. Stubbs in the following terms:

"Dear Mr Stubbs, I am writing to seek the advice of the Bar Council in relation to the terms on which a body called Kearns Agency Limited, formerly called Kearns & Co, has been instructing junior barristers and continues to do so. I am a Pupil Master and I have recently become aware of an arrangement under which Kearns had instructed the working pupils in this chambers. I understand from those pupils that many of their contemporaries in other chambers have been regularly instructed on identical terms. I attach copies of letters of instruction in four cases, together with statements of costs sent to the barristers in those cases to present to court for the purposes of summary assessment of the costs. It will be seen that the arrangement is that the barrister is instructed as agents for Kearns Agency Limited at a pre-marked fee of £35 plus VAT. Kearns themselves seem to act as agents for a number of firms of solicitors. Remarkably the barrister is instructed not to contact the client, which seems to mean the solicitor, either before or after the hearing. It will be seen from the statements of costs that these do not accurately reflect the fee charged by the barristers. Instead of the fee being properly recorded as counsel's fees of £35 plus notional VAT, the barristers not being VAT registered, the fee claimed is 'agent's fixed fee' of £60 plus VAT. I have checked this morning with the Bar Council and the Kearns Agency Limited is not registered as a Bar direct body. The first issue that obviously arises is the fact that the presentation of the statements of costs may well mislead opponents and the Court. Both are obviously likely to imagine that the fee of £60 is the advocate's fee for the hearing. Both the pupils in this chambers have been scrupulous about pointing out to the Courts their actual fee and, as I understand it, the costs allowed have been reduced accordingly. However, there is an obvious risk that costs claims will be settled on a misleading basis, or that advocates at later hearings, perhaps employed by Kearns, may be less scrupulous. I am very concerned that the terms on which Kearns instruct barristers, and indeed the way in which they operate, will cause the barristers to be in breach of the code of conduct.

•Kearns are a limited company which is not a Bar direct body. This is a breach of paragraph 401 of the Code of Conduct.

•One instruction of the fee arrangement is that the fee to the professional client or the opponent for the barrister's work is £70.50, of which the barrister receives £35 and Kearns the balance. If that is right, this is a breach of paragraph 307(d) and/or (e) of the Code of Conduct.

•The presentation of the misleading statements of costs is a breach of paragraph 708 of the Code of Conduct.

•The entire arrangement, and in particular the instruction to the barrister not to speak to his professional client appears to breach paragraph 303(b) and indeed 301 of the Code of Conduct.

I would be grateful for the guidance of the Bar Council on these issues. I am away on holiday from 17th September to 4th October, but if any further information is required in that time [Mr X] should be available to assist. I have also given a copy of this letter and its enclosures to my head of chambers, … who may be able to assist. Yours sincerely."

3

The standard letter of instruction to which that letter refers was expressed as follows, and it is addressed to the barrister in question:

"Dear Sirs,"—and then there is a series of subheadings—"Case, Court, Date, Time. Agreed fee, £35 plus VAT.

Thank you for agreeing to act as our agents. Please read this letter and our client's letter of instruction carefully upon receipt. Please pay particular attention to the terms of any order requested by our client. Please check that the court and times listed on the Notice of Application correspond with your diary entry as it would appear some courts sit at alternative venues from time to time. Please quote our reference number with all queries or correspondence. We enclose the papers relevant to the application and would ask you to rely upon the pleadings in the claimant's witness statement and letter of instruction. Please contact our Miss Ruth Williams with any queries at least one day before the hearing. Do not contact our client direct. In successful cases, a short attendance note is all that we require. However, if we do not achieve the desired result, or if the application is adjourned, we need to know why. A handwritten attendance note will suffice if a typed attendance note will result in a delay in the return of the papers. In certain actions, we may also enclose a pro forma attendance note for you to complete instead of a typed report. Please prepare and fax or email your report to our office, not our client immediately after the hearing. The papers and a note of your charges should follow in the next day's post. May we take this opportunity to once again thank you for your kind assistance.

Yours faithfully, The Kearns Agency.

E-mail ruth@kearns.co.uk a one-stop service that brings court agency into the 21st century."

4

Upon receipt of the barrister's letter and enclosed information, Mr Stubbs contacted the Chairman of the Professional Conduct and Complaints Committee having, in the meantime, drafted a letter with a view to its being circularised to heads of chambers and to senior clerks or practice managers. He wrote to him on 14th September and it is thus clear that he acted promptly on learning of the barrister's concerns. The information passed to the Chairman was as follows:

"I attach a letter that I have received from [the barrister] … detailing some instructions which appear to have been sent to chambers by the Kearns Agency Limited. I have spoken to [the barrister] and he thinks that originally this group was called Kearns & Co and that chambers accepted work assuming that it was a firm of solicitors. It seems to me that this is a clear breach of the Code of Conduct. Counsel's relationship here is with the agency rather than with solicitors (there is nothing in the correspondence to suggest that solicitors are even aware that counsel is being instructed or that they are personally liable for counsel's fees) and the remainder of the arrangement looks very close to that which troubled us over Brown & Associates. It seems to me that I should issue some guidance on this subject to the Bar and I attach a possible draft. Strictly, it seems to me that [the chambers] and the various pupils involved have been guilty of misconduct in accepting this work. I suspect that this applies to a substantial number of other chambers. I am reluctant to raise complaints in respect of [the chambers] since [the barrister] said they accepted instructions in order to gather evidence for us … and they have, in any case, drawn the matter to our attention. I suggest we take a similar line to that we have on Browns, which is that we will treat as misconduct any instructions accepted after the warning has been circulated. Are you content with this approach?"

5

On 18th September Mr Stubbs received an e-mail from the Chairman in response. He agreed with his approach and, subject to minor amendment, sanctioned the terms of the draft which at that stage he was assuming would be included in the Bar Council's regular bulletin for practitioners, Bar News. It was against this background that Mr Stubbs sent on 24th September the circular letter which now forms the subject matter of this libel...

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