Court of Appeal clears challenge by Criminal Barristers to the Quality Assurance Scheme for Advocates

The Court of Appeal in London has allowed criminal barristers represented by the Criminal Bar Association (CBA) to continue its challenge to the controversial Quality Assurance Scheme for Advocates (QASA) and suggested it calls on the entire bar to help fund the action.

Lords Justice Tomlinson and Briggs granted permission for the criminal bar to appeal the High Court’s dismissal of its judicial review. The Court said that raising issues like ‘fundamental constitutional importance’ are in the public interest.

Tom de la Mare QC of Blackstone Chambers, argued limiting the costs liabilities of the appellants if they lose to £34,000, by setting up protective costs order (PCO), He also told the court  to set the sum higher risked ‘snuffing out’ the action for want of funds. The court made a PCO in the sum of £65,000 stating it was not appropriate that bringing the action could be entirely without risk to the party bringing it.

Lack of funds raising the bar

Lord Justice Tomlinson also accepted that the costs of the action had so far been raised by criminal barristers. But did not accept all sources of funds as already been exhausted, and suggested that the ‘entire bar’, not just the criminal bar, including commercial practitioners, should be tapped for funds. As they also have an interest in the case. He added that ultimately the litigation cost will fall ‘very largely’ on the bar, thus Criminal Solicitors, he said, will also contribute, as they also fund the LSB. In January the High Court rejected the CBA’s challenges to the scheme, stating there was ‘no reasonable prospect’ of successfully challenging the judgment.

The court decided to speed up the appeal hearing, but it is unlikely to take place until July at the earliest. De la Mare, for the appellants, asked the court to stay the start of the scheme pending the outcome of the case. The regulators objected to a stay, asking that they are able to continue the preparation for the scheme, including the training of judges.

The Court of Appeal declined the stay instead asked the regulators come to an agreement themselves, returning to court if they cannot do so. All criminal barristers and higher rights advocates are to register with their regulators by 31 December – but due to the ongoing litigation the Bar Standards Board has suspended registration.

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