Robert Clay

Job title - Barrister, Atkin Chambers
Qualifications - Call 1989
CV - Core areas of practice: Litigation and arbitration, domestic and international, in the construction, civil engineering, energy, oil and gas sectors

You practice from a specialist set of fewer than 40 members. What do you think are the advantages?

For me, it is important to belong to a small set where all of us specialise. Atkin Chambers has expanded organically largely by recruiting pupils. I would expect rapid or large expansion would dilute our expertise, and be perceived as such.

My experience is that in our field in-house lawyers go to barristers direct because they want to get one or two barristers as part of the team, to read in to specific areas, advise on the law, and on tactics, and of course to present the case. They tend not to approach us with a view to bringing in a large number of extra bodies. The problem in a large case is normally not so much the amount there is to read, but identifying critical issues, and planning how to deal with them. We can divide the work into straightforward data management tasks, and more specialist tasks, and the client can then use paralegals and its own resources for some tasks, and use barristers, solicitors and experts cost effectively.

Do you often find yourself working closely with clients direct?

Yes, but only where the client has its own legal department. Large construction and engineering firms are not newcomers to the idea of direct access and they have managed direct access by having experienced in house solicitors, who can judge when and how to use barristers direct. 

International firms are quick to see where it will suit their way of dealing with disputes. A large team often includes solicitors seconded to the client from solicitors’ firms, and at the hearing stage my direct instructions will be replaced by instructions from external solicitors. I find that it often strengthens the relationship with the external solicitors, because one works more closely with the individuals involved. 

Working direct with the clients is more common in international work.  But it is also more common in the largest cases generally, both domestic PPP contracts, and international arbitrations. My instructions in small UK cases all come in the traditional way.

What proportion of your fees is earned internationally?

The overall proportion of international work for chambers is up to one half of income in a given year but varies enormously for individual members.
In some years I have earned more than half my income from overseas because one large international case can require virtually full time attention. But for the last two years UK cases have dominated my earnings.

We foster links with lawyers in other jurisdictions in various ways. I  and other members of chambers have had  lawyers from the Peoples’ Republic of China as quasi-pupils for several months under the Lord Chancellors’ Scheme sponsored by the Ministry of Justice.

of chambers present at and attend seminars in many different parts of the world. These things help slowly and indirectly, and they are worthwhile in themselves.

Do you think that foreign jurisdictions are opening up for the Bar?

The situation seems quite fluid and open in older markets and some new markets look promising.  For example, although I have worked only on oil and gas from the Middle East and the Gulf, some colleagues are being instructed in transport, infrastructure, and general construction cases from the Gulf. Work has also come from Africa, China, Russia and Eastern Europe.

It is encouraging that the market which currently exists for the Bar in many places has grown suddenly from almost zero. In our area of the law the same specialised problems are being considered in different jurisdictions around the world, and professional clients will recognise the names of cases in which members of chambers have appeared.

You have spent some of your time in the past year editing Hudson on Building and Engineering Contracts, which came out in December. Do you think it is important to be involved in publishing?

Clients like lawyers to wear their legal expertise lightly, but from time to time they need to know that we have the expertise to pursue the newest and most difficult points, and to interact with the most intellectual tribunals.

Several members of chambers wrote Hudson in the 1960s, but then Hudson was entirely the work of one of us, the late Ian Duncan Wallace QC.  Rewriting it with a large number of authors has been a daunting task.  We were encouraged by the fact that other sets of chambers write collaboratively. Ian Duncan Wallace’s style was unmistakeable, and he had many trenchant things to say about the errors of appellate courts. It was important to preserve some of that flavour and other features of the book which made it attractive internationally.

Guy Hewetson, LPA Legal, interviewed Robert Clay.