The Temple gardens are lush with flowers, buzzing with murmuring lawyers who amble around them. As a now-‘provincial’ lawyer, this makes me momentarily wistful, but life at the Bar is not all roses and these corners of London seem somehow unreal.
Philip is the joint head of chambers at 1 KBW, where he has spent his career from first arriving as a pupil keen to forge a practice including crime, family and some defamation (although nothing came of that). The Temple is where he has been based ever since. The chair of the Family Law Bar Association (FLBA) is often, but not always, drawn from the London Bar – perhaps understandably – so I wonder about the sense of connectedness with the membership out in the sticks.
I know that Philip is a pretty prolific tweeter, taking the lead with the @familylawbar Twitter account alongside his own personal account (@pjm1kbw). He estimates he has 4,600 followers (he is surprisingly close) and perceives Twitter as an important additional means of communication ‘primarily because we are not just communicating to each other – not just to other barristers, but across the whole of legal profession. It’s the most effective way of tapping into the non-lawyer way of thinking’. He does, however, acknowledge a familiar problem for the Bar on Twitter: work avoidance tactic: ‘It is a tremendous distraction from being terribly busy.’ It is reassuring to hear that this is common to not just my practice as a junior: ‘The more time one has for a case, the later I leave it. It’s the adrenalin.’
Denying any pre-court rituals, he says he constantly makes paper lists, confessing he tends to worry more about cases since taking Silk: ‘I have longer to prepare… when you are a senior junior going from case to case to case you have no time. I think I used to have iced water in my veins in those days.’ Often up at 4am and in chambers by 5am, he used to work habitually through the night but struggles to do so more than once a week these days. Although he is unphased about juggling the demands of being a ‘big money Silk’, joint head of chambers of a top set and chair of a specialist Bar association (SBA) – the most he’ll admit is that sometimes it feels as if he is constantly in meetings.
The specialism pigeonhole
I ask him about what he wanted to be ‘when he grew up’. He tells me that as a boy he had the ‘usual aspirations’ to be a vet, then a cardinal and later the Lord Chief Justice. At first I’m not sure if he’s pulling my leg – but while he grins in recognition that his ‘usual’ is not mine, he’s quite serious. He goes on to tell me that being a barrister was his only ever serious ambition, but like so many of us the specialism in family was serendipitous. He started out doing a ‘ragbag’ of things including crime, personal injury, jury trials, landlord and tenant and ‘proper civil’.
I wonder if the fact that the younger family Bar doesn’t have that range at the outset is a concern for him. He replies that ‘the training is an awful lot better than it was… there really wasn’t any advocacy training other than sitting and watching’. But he is conscious that ‘there is a tendency now to be very narrow – not just to say I only do family, but increasingly to say I only do children, or I only do money’. He slightly regrets the tendency to pigeonhole juniors so early.
Is it difficult to be chair of an SBA as a privately paid finance silk? On a practical level, yes, ‘because so much goes on that is not familiar to me – when we have debates that child law practitioners are up in arms about’. He reminds me, though, of the breadth of specialisms across the national committee and that the vice chair, Frances Judd QC, is primarily a children specialist.
We move on to the predictable, but important, topic of public funding. Philip tells me he is acutely aware of current financial constraints, ‘but I’ve never suffered from them because even 15 years ago the family Bar was still a respectable way to earn a living – you could earn well and it wasn’t perceived you didn’t, through legal aid’.
On the chasm between legal aid and private rates that has opened up since those times, he worries about an ‘over-temptation for some people to stop doing legal aid if the opportunity is there to do private work. It’s a great pity. If you wind back 15 to 20 years ago all the great matrimonial barristers did the whole range of work’.
In light of all this, what does he say to aspiring family barristers who cross his path? He suggests they have to be very clear in their mind that it’s something they want to do: ‘In some ways it used to be a default area, whereas now you have to be very, very determined.’ Noting that pupillage numbers are slightly down, he wonders if ‘perhaps people are getting the message about enormous fees on the BPTC with no guarantees’.
The Online Family Court and McKenzie Friends
I want to know about the focus for the FLBA this year. First up is ‘the upcoming changes in the way we practice and function at a very basic level – the Online Court’. He is aware that although the Lord Justice Briggs Working Group is focusing on civil, it will undoubtedly happen in family.
I ask how smooth he thinks these changes will be, to which he responds cagily: ‘The timescale for the civil implementation is very short. They have £730m and what is not spent by 2020 goes back.’ He understands that the President of the Family Division will be taking forward the Online Family Court rather than Briggs LJ himself, and as chair of the relevant SBA he is expecting a meeting with the President shortly. It emerges, in discussion, that it is unclear whether any part of the £730m is earmarked for the Family Court – something he plans to take up with President: ‘One of my concerns is that a lot of reform, a lot of innovative thinking goes on within the justice system and the family courts tend to catch up after.’ He gives the example of vulnerable witnesses. ‘I don’t know,’ he adds, ‘whether there is an agreed formulated timetable for all this to be done in the Family Court.’
All this seems surprisingly vague, given firm announcements as to its imminence. I ask about the level of input the FLBA has had so far. His frank answer is: ‘Not a great deal at the moment.’ Which prompts him into observing regretfully: ‘We were not consulted about the proposal to modify the threshold for appeals before the consultation was issued. Which is surprising.’ He’s referring to the consultation on appeals to the Court of Appeal issued by the Ministry of Justice in May, which proposes amongst other things raising the threshold for permission. This, he says, is another big issue on the agenda this year.
A further priority is the Lord Chief Justice’s McKenzie Friends consultation, just closed. He is aware that there is a recognition that the family court is most impacted by McKenzie Friends and litigants in person (LiPs), but notes: ‘There hasn’t been the focus that one might have expected to see how these things might properly be dealt with in the family courts rather than just across the justice system as a whole.’
Although he hasn’t mentioned it as a hot topic, I ask about transparency. It is, he observes, primarily driven by the President of the Family Division, Sir James Munby, who is ‘a great fan of transparency – as far as it can reasonably go’.
‘I don’t believe we should simply do these things because there is a clamour amongst certain sections of the press, based on what I think is possibly a false premise, that the family courts are secret. They are not, as we know – the press has absolute right to go in. And one of the most remarkable things about the change of rules [in 2009] which allows this is the infrequency with which one encounters the press other than in celebrity divorce cases, which then get splashed across the newspapers.’
He is troubled by suggestions that press should have access to trial bundles and fears there would be an interest in material that has nothing to do with the case or law – ‘there would be more interest in credit card statements than novel points of law’.
This is a view of transparency from the perspective of a so-called ‘big money’ Silk – so I ask him about the widely noted difference of opinion on the question of privacy in financial remedy proceedings between certain members of the High Court Bench.
‘It’s entirely unsatisfactory for litigants – it largely depends to whom one is allocated by the gatekeeper judge. It’s a litigation risk but it’s not a balanced risk because at the moment the issue tends to be confined to one judge [Mr Justice Holman almost always sits in public], but obviously there are cases where there is a legitimate public interest in the case being heard in open court.’
He gives the example of Cooper-Hohn v Hohn (various 2014), and says his own experience is that those cases which attract press interest tend to become ‘a bit of a free for all’. He’s at pains to emphasise he is not talking about specific celebrity cases in which he has been involved, but says: ‘As a general point – there is an over-temptation that the parties can fuel interest by putting certain information in the public domain that they perceived is in their interests.’
In 10 years’ time…
So that’s this year. But where will we be in 10 years? He thinks the family Bar will probably be smaller and may in part depend on whether some of the work, such as public law children work, continues to be dealt with in courts or is moved off in the direction of the Scottish system. [The Scots operate a tribunal system when removing children from the care of abusive or neglectful parents.] In response to my raised eyebrow, he says: ‘Yes, I fear that’s still rumbling; we’ve had some meetings about it. Whether it will be particular to this Lord Chancellor who has a particular regard to the Scottish legal system or a cost saving exercise, I don’t know.’
He moves on to talk about alternative dispute resolution in family work, where arbitration is slowly picking up speed (the Institute of Family Law Arbitrators (IFLA) scheme for financial remedy arbitration has recently reached 100 arbitrations). He suggests the whole way we operate will change remarkably and that much of the private law children work will be conducted without lawyers. ‘We may embrace arbitration much more than we have. I suspect as and when the IFLA children scheme takes off it will be a catalyst to the money gathering momentum. It’s illogical to litigate money if you are arbitrating in respect of the children.’
He predicts a big move by the family Bar to become arbitrators, whilst acknowledging there are structural and funding problems: ‘It is one of my enormous frustrations that with the decimation of legal aid in all but public law children cases in the family sphere, there hasn’t been some partial additional funding going into mediation to try and address the obvious problem the courts are now wrestling with of a great mass of LiPs with no legal knowledge and no representation and no effective alternative method of resolving their disputes other than going into courts. I hope there will be a great move into ADR – but I doubt it will be publicly funded.’
Governance of the Bar
Finally, I ask Philip if he has any message he would like to get across that we have not touched upon? His position as chair of an SBA has given him a new perspective on what goes on in terms of governance of the Bar. ‘There is an occasional sense of frustration that things go on at a very high level that don’t always impact on the family Bar and don’t necessarily always take us primarily into account. But actually, having seen how it works and sitting on [General Management Committee] and monthly meetings, I can say it is a tremendously important body and one which as family lawyers we should involve ourselves in and embrace. I’d encourage family lawyers to do that.’
A few days after the interview, Lord Sumption delivers a speech at the At A Glance conference where he tackles the issue of over-specialisation. Sumption said: ‘Yet even by the standards of legal specialists, family law seems usually self-contained to an outsider. Not only is it surrounded by impermeable barriers, but it is internally subdivided by equally impermeable partitions [between money and children work].’
Sumption offers the view that the family Bar is uniquely insular. Perhaps he is right. It strikes me that through much of our interview there is a tension between the view of the family courts as part of the wider justice system, sharing many common features and problems and learning from their experiences, and the recognition that this is nonetheless a field full of its own peculiarities and with its own distinct issues. Philip’s role requires him to bridge divisions within the family Bar of geography, disparity in income and lifestyle, and between micro-specialisms; and to foster connection and cross-fertilisation with the wider legal community. His self-effacing twitter profile, ‘Just a QC making his way’, belies the breadth of this task.
Contributor Lucy Reed, St John’s Chambers