The fee security gap: what 25 conversations with the commercial Bar revealed
By Maddi Briggs, Account Manager, (Litigation), Shieldpay
Over the past few months, I've spent time with 25 + practice directors, managers and senior clerks across the commercial Bar. One leading chambers set told me they turn down 7 to 10 instructions a year - brief fees of £100,000 or more, cases the barristers wanted to take and the clerks had sourced - declined, because there was no structured way to secure payment.
That's not a trust problem. Trust is there - the client wants representation, the arrister wants the brief, the clerk has done the work. It's a structural problem rooted in the rules of the Bar itself - and its consequences are more serious than a declined instruction.
Barristers are self-employed. They rely on the income from their next instruction to cover their practice costs, their chambers expenses, and their own livelihood. A fee that isn't secured before the work begins is a fee that may never arrive. Delayed payment isn't a minor inconvenience - it is a cash flow problem for the individual and for the set. Chambers depend on the fees their members generate to keep the business running. When payment is uncertain or late, everything downstream is affected.
Barristers cannot hold client money under rC73 of the BSB Handbook. Chambers can demand upfront payment, but not all instructing law firms are willing to pay for work not yet done - and different chambers operate under different terms, with some following Combar terms and others working to more bespoke arrangements. Where upfront payment isn't agreed or isn't forthcoming, the barrister does the work, invoices after, and relies entirely on the client paying. The fee security gap isn't a client behaviour problem. It's built into the instruction model.
The problem has a history
The Bar Council's own answer to this was BARCO - a Bar-specific escrow scheme that ran until 2018, when it was quietly wound down. The stated reason was financial: income from fees didn't cover the cost of running the scheme.
But practice directors I spoke to gave their experiences of BARCO and they shared it was paper-heavy, slow to set up, and priced in a way that made barristers sceptical before they’d seen how it worked. Traditional escrow fee structures were built around the value of funds held - a percentage applied to the amount sitting in the account, which compounds quickly on large or long-running matters. A fee calculated as a percentage of funds held can become costly enough to make the mechanism cost-ineffective, and that cost concern alone can end the conversation before anyone asks what the alternative costs in bad debt, delayed payment, or declined instructions.
The Bar needs a solution
The consistent thread across almost every set I visited is that chambers do want fee security. The problem is that the options available to date haven't been designed around how the Bar actually works..
The specific concerns I heard, repeatedly:
Pricing. One senior clerk described barristers as people who will scrutinise an escrow fee on a high-value matter and reject the entire concept without asking about the alternative costs in bad debt, delayed payment, or declined instructions. In other words, cost scrutiny is high, and any solution that can't demonstrate clear value against its fee is rejected before the conversation gets started.
The response to this is to lead with the comparison, not the cost. On a £500,000 matter, Shieldpay's fee is a fraction of the revenue at risk if payment is delayed or disputed. The conversation should start there.
Complexity. The brief fee plus refresher model, across cases that run for years and adjourn unpredictably, doesn't fit a simple "deposit funds, release on completion" structure. Any workable solution needs to accommodate staged payments, evolving scope, and uncertain timelines.
Neutrality. Several sets were clear: any payment mechanism must not shift bargaining power between chambers and the instructing firm. The structure has to hold funds independently, release on agreed terms, and stay invisible to the working relationship.
Visibility without burden. Clerks want to know what's secured, what's outstanding, and when payments are due - without taking on manual reconciliation to get there.
None of these are objections to escrow. They're specifications for what a workable escrow solution looks like.
Where the demand is actually concentrated
This is worth being precise about. Chambers aren't looking to apply escrow universally; with many matters adopting chambers traditional payment terms. However, where there is a question around fee security there needs to be a viable solution.
The pressure is specific:
- International instructions, particularly from the Middle East, offshore centres, and jurisdictions where payment chains are long and correspondent banking adds friction
- Arbitration, where arbitrators' own fee security is a distinct and growing problem - as one practice director at a leading construction set put it: "there is a big gap in the market for providing a solution for arbitrators and the security of their fees"
- High-value, long-running trials, where refreshers accumulate over long periods and the chambers is, in effect, extending significant credit to the instructing firm
- Third-party funded matters, where the fee-paying entity is not the instructing solicitor and payment is contingent or staged
Typical escrow values across these matters run from £300,000 to over £1 million. Duration: 6 to 12 months. Frequency: 1 to 3 matters per set per year. That's not an enormous volume - but it's a concentrated volume of the highest-value, highest-stakes instructions chambers take.
These are exactly the cases where trust has historically been enough. Until it isn't.
The regulatory position is clearer than most chambers assume
There is a persistent uncertainty in chambers about whether escrow arrangements are permitted under BSB rules. They are.
Where this is heading
The most striking conversation I had was with a practice director who said: "If we can find a solution that works, bring all the claimant chambers together and reach a collective agreement that this is how it's done going forward."
That's not a product conversation. That's market infrastructure being designed in real time.
The broader opportunity is institutional. When BARCO existed, it gave bar associations and specialist Bar groups a clear mechanism to recommend to members. That mechanism no longer exists - and the gap it left is visible in every conversation I've had. The question of how the Bar collectively agrees on a solution is one the associations will need to answer.
Is it compliant?
Yes - but the rules at the Bar are more specific than many chambers assume, and it is worth being precise about them.
rC73 of the BSB Handbook is clear: barristers cannot receive, control or handle client money other than fees paid for their services. That prohibition applies to the barrister personally, to anyone acting on their behalf, and to any ProcureCo arrangement, including chambers bank accounts used on their behalf.
The route around it is rC74, which expressly permits the use of a third-party payment service. The service must meet three conditions. First, under C74.1, it must not result in the barrister receiving, controlling or handling client money. Second, under C74.2, it can only be used for payments in respect of legal services - fees, disbursements, or settlement monies. Third, under C74.3, the barrister must take reasonable steps to satisfy themselves that using the service is consistent with their duty to act competently and in their client's best interests.
This last point has practical content. The Bar Council's guidance (gC110) sets out the checks a barrister is expected to carry out before recommending a provider to a client: FCA authorisation, fund segregation, and confirmation that client funds can only be released with the client's consent. Shieldpay meets all of these. It is FCA-authorised (firm reference number 770210), holds client funds in ring-fenced, safeguarded accounts entirely separate from its own funds, and executes payments only on agreed instructions.
One important difference between the Bar and solicitors: solicitors using a TPMA are not subject to a banking facility rule. Barristers are, because of C74.2. The practical implication is that the arrangement must be scoped to legal services specifically - it cannot be a general-purpose payment facility for non-legal activity.
There is also a client care dimension. Outcome oC18 of the BSB Handbook requires that clients are adequately informed of the terms on which work is to be done. Where an escrow arrangement is being used, clients need to understand the nature of that arrangement. In practice, this means including a clear explanation in the client care letter or terms of engagement - covering who holds the funds, on what terms, and how release is triggered.
None of this is a barrier to using escrow. It is a specification for how to use it properly. If chambers want further comfort on their specific circumstances, the BSB Ethics Helpline (020 7611 1444) can provide guidance.
What this means for chambers considering it now
The sets that move first will have structured the arrangement before it becomes standard. They'll have ironed out the setup, built the internal workflow, and established the precedent within their chambers before peers are even asking about it.
The set turning down 7 to 10 cases a year is the right frame. This isn't about whether to trust the client. It's about whether to decline the instruction. And for the sets doing that calculation repeatedly, the question is how many more cycles of that they want to run through.
I'm talking to practice management teams across the commercial Bar throughout 2026. If you'd like to be part of that conversation, or if you're already working through this for your chambers, connect with me on LinkedIn.
Maddi Briggs is Account Manager (Litigation) at Shieldpay, an FCA-authorised payment institution (firm reference number 770210) approved by the Bar Council's Ethics Committee as a suitable escrow provider for the self-employed Bar.
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