The Court of Appeal has allowed the criminal bar 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 on Friday granted permission for the criminal bar to appeal the High Court's dismissal of its judicial review, stating there are 'compelling' reasons relating to the independence of advocates and of the judiciary.
The court said there is a public interest in determining the issues which raise matters of 'fundamental constitutional importance'.
Tom de la Mare QC of Blackstone Chambers, acting pro bono for the bar, asked the court to set a protective costs order (PCO), limiting the costs liabilities of the appellants if they lose to £34,000 - the sum the Criminal Bar Association raised from the profession to fund the case.
He told the court that 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.
Tomlinson accepted the costs of the action had so far been raised by criminal barristers, who he said are the 'most hard-pressed part of the bar'. But he said: 'I am not satisfied that all sources of funds are exhausted'. The 'entire bar', not just the criminal bar, he said, has an interest in the case and suggested that other parts of the bar, including commercial practitioners, should be tapped for funds.
Tomlinson added that ultimately the litigation cost will fall 'very largely' on the bar, which funds the Bar Standards Board (BSB) and the Legal Services Board (LSB), which are individually represented. Solicitors, he said, will also contribute, as they also fund the LSB.
In January the High Court rejected the bar's challenges to the scheme. While saying its concerns were 'entirely genuine' it refused leave to appeal, stating there was 'no reasonable prospect' of successfully challenging the judgment.
The case has been taken in the names of four barristers - Katherine Lumsdon, Rufus Taylor, David Howker QC and Christopher Hewertson - and supported by the CBA. The barristers were represented pro bono by Tom de la Mare QC of Blackstone Chambers, Mark Trafford of 23 Essex Street, Tom Richards, also of Blackstone Chambers and international firm Baker & Mckenzie.
Duncan Sinclair of 39 Essex Street represented the LSB, Tetyana Nesterchuk of Fountain Court Chambers represented the BSB and Chloe Carpenter also of Fountain Court Chambers represented the Solicitors Regulation Authority.
The Law Society and CILEx, which had been represented as interested parties in prior hearings, are no longer involved.
The court agreed to expedite 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.
Tomlinson declined to stay the start of the start of the scheme; instead he asked the regulators come to an agreement themselves, returning to court if they cannot do so.
All criminal advocates are to register with their regulators by 31 December - a date the regulators are still working towards, but due to the ongoing litigation the BSB has suspended registration.