REVISED: COMBAR and City of London Law Society Contractual Terms
The City of London Law Society (“CLLS”) and COMBAR have agreed a standard form of contract for use in commercial cases by solicitors and barristers ("the Terms"). Use of the Terms is voluntary, and the Terms will need adaption for individual cases.
Your attention is drawn to the two guidance notes available below: the agreed guidance, and the COMBAR guidance note. Please read both before considering use of the Terms.
In particular, you should note that:
(a) The Terms are a product of negotiation with the CLLS. They do not represent the optimal terms on which COMBAR barristers might contract with solicitors. In certain respects (most importantly the absence of a default basis for payment of barristers) the Terms reflect the fact that no common position could be agreed.
(b) At no stage has COMBAR indicated to the CLLS that the Terms have been agreed by or on behalf of the individuals or chambers that are members of COMBAR.
Version 2 of the Terms is dated 1 January 2014. It builds on practical experience of using version 1 of the Terms; makes clearer the effect of certain terms; and reflects certain regulatory changes (in particular, the replacement of the Code of Conduct). Please see links to the revised Joint Guidance issued by COMBAR and CLLS and COMBAR’s own revised guidance to its members on the Terms.
Version 2.1, dated 23 June 2014, amends version 2.0 by confirming (for the avoidance of any doubt) that the optional limitation in clause 20.3 caps the barrister’s overall liability including any liability under clause 12.3.
It is envisaged by COMBAR and CLLS that where barristers and solicitors contract on the basis of the Terms, it is the Terms in force at the time of making the Agreement to supply Services that will apply to those Services.
Accordingly, we would expect barristers and solicitors entering into new contracts on the basis of the Terms from now on to be contracting on Version 2.1 (unless and until they are replaced).
Word Document (front page only)
The Standard Conditions of Contract for the Supply of Legal Services by Barristers to Authorised Persons 2012
Law Society Practice Note
Law Society Schedule of Variations to the Bar's Standard Contractual Terms
Law Society practice note on the use of Counsel's opinions in KM systems
Bar Council Guidance on Law Society's Practice Note
Some Chambers and Solicitors are seeking to make use of the Terms, but to make amendments to them. This is perfectly acceptable, and indeed envisaged by the Terms themselves.
However, if they are still referred to as the COMBAR/CLLS terms, or as being based on the COMBAR/CLLS terms (whether on the face of the terms themselves or in any accompanying e-mail), the amendments should be set out on the front-sheet, and not made to the general terms themselves. If you decide to amend the general terms themselves, they should not then be referred to in any way which associates them with the COMBAR/CLLS terms themselves. For this reason, a Word copy of the Terms is not available.
The use of the Terms has been approved by the Bar Mutual Indemnity Fund. With effect from 1 February 2013 clause 3.1(x) of the Bar Mutual Terms of Cover was amended to provide cover in respect of liability incurred under a contract where the contract is between an insured member and instructing solicitors and, insofar as its terms concern a contractual liability of the insured member, is in a form previously approved by the BMIF for the field of work performed by the insured member under the contract. The Terms have been approved for these purposes by the BMIF subject to a condition that the limit of the BMIF's liability to indemnify any insured member for any liability under the Terms that would only be covered by the BMIF by virtue of clause 3.1(x)(b)of BMIF’s Terms of Cover shall not exceed £100,000, exclusive of defence costs.
Version 1 of the COMBAR/CLLS terms was superseded by version 2 on 1 January 2014.
Since version 1 may be relevant to ongoing cases, version 1 and its guidance may be found here:
COMBAR CLLS Barrister's Terms (Version 1.4)
COMBAR CLLS Joint Guidance note on Barrister's terms (Original)
COMBAR Guidance on Contract Terms (Original)
Please note that COMBAR is not in a position to provide assistance to COMBAR members as to the appropriate terms to use for individual cases or to advise as to the meaning and effect of the COMBAR/CLLS terms. However, COMBAR and CLLS will continue to keep the COMBAR/CLLS terms under review and COMBAR would welcome feedback from COMBAR members as to their use and operation in practice.