She was followed on stage by Peter Lodder QC, whose task it was, with the conference theme in mind, to provide an annual update to the profession. He outlined some of the core activities from his year in office, focusing most notably on the battle against the Legal Aid, Sentencing and Punishment of Offenders Bill. That battle has been fraught and bloody and it rumbles on. Set-pieces such as the Manifesto for Family Justice were favourably reported on, but it remains the case that the Bar has not made the impact it would have wished to. The Government’s heels remain firmly entrenched, despite organisations representing all manner of interests, not least those of women, children and families, railing against the cuts.
But, Lodder told delegates, “we must strive to control our own destiny”. He highlighted some of the steps the Bar Council has taken this year to do just that. International opportunities for the criminal Bar have been sought, but it is not just on the publicly funded side that the profession has been adapting and evolving. The Bar Council has been at the heart of the Unlocking Disputes campaign, which promotes London as the world’s leading centre for dispute resolution. The picture was of a profession striving to be a modern, progressive service provider; in touch with its clients’ needs.
There can be no better example of that than the Bar’s push on Public Access, “an excellent scheme, enabling members of the public to obtain specialist advice and representation direct from counsel”. The great benefit of the Scheme, Lodder said, was that it brings together the interests of the consumer with the interests of the Bar; to achieve cost-effective, high quality legal services.
The speech was complemented by the keynote address, which followed, delivered by Robert Webb QC, the former General Counsel of British Airways. With a glittering CV, which included both that role, a long spell at the self-employed Bar and one of his current roles as non-executive Chairman of BBC Worldwide, Webb brought a pragmatic and business-minded take to the discussion.
The Bar, he said, never enjoyed “a static ‘Golden Age’”. It is, and always has been, a difficult and demanding career. He was full of praise for the role and ethos of the independent Bar and its steadfast commitment to the Rule of Law for all.
But it was not all praise. There were some strong messages for all in the audience to take away with them, delivered with good humour, credibility and passion. First and foremost, he called upon the profession to get involved in the national debate. As self-employed practitioners “who can say what [they] like to whom [they] like (apart from [their] clerks)”, there are no restrictions on what barristers can say publicly, in the same way that General Counsel or corporate officers are beholden to their Boards. Whether on super-injunctions, torture, or the St Paul’s protests, the Bar’s voice should be louder.
And it is not just the opinions of the Bar which need to make more of an impact, Webb stated, it is also engagement with the new freedoms available. Even if there was once a golden age, it has now gone. Solicitors are encroaching into the Bar’s territory and the Bar must respond. It may be into new business models, it may be by moving into industry, but times have moved on. It was a personal and fascinating insight delivered by one of industry’s most successful legal figures. And there was much for the modern Bar to learn.
The session was wrapped up with the presentation of the Annual Pro Bono Award by the Attorney General to Shereener Browne, who spoke incredibly movingly about her path to the profession; a fitting reminder that as hard as the challenges might seem, there is always room for optimism.
What a difference a year makes: Working with the Coalition and the Comprehensive Spending Review
The Criminal Bar Association workshop got underway with a strident address by the CBA Chairman, Max Hill QC. It has been a very difficult 12 months for the Criminal Bar. The cuts have been nothing less than brutal and further upheaval is expected in the near future in the form of Quality Assurance Scheme for Advocates and the Government’s plans for contracting which are expected to be announced in the near future. The Attorney General, the Rt Hon Dominic Grieve QC MP, was present on the panel for this session together with Adam Pacifico of the Pacifico Partnership and Jonathan Laidlaw QC of 2 Hare Court. If the Attorney-General harboured any doubt as to the mood of the Criminal Bar and whether it was prepared to take direct action, that doubt was thoroughly expelled by the end of the Chairman’s address.
The resounding message was one of frustration and a profession at the end of its tether. The Criminal Bar recognises that its very existence is threatened by ‘one case one fee’ and ‘best value tendering’. These proposals are wholly inconsistent with recent messages from the government affirming its commitment to the existence of an independent Bar. Max Hill QC gave a dire warning about the exodus of talent from the Criminal Bar. The difficulty is not so much that the Bar has to shrink; but it is losing quality. The challenge is now to find a way of ensuring that the right people remain within the profession.
Amidst the frustration and anger, a pervading sadness was palpable. It is clear that the form and structure of the Criminal Bar is approaching the end of one era and the beginning of another. As one person in the audience put it – ‘the publicly funded Bar will never again be adequately remunerated’. Regardless of good intentions as to quality, if the Criminal Bar is to survive it must turn at least part of its attention to other sources of work.
With that in mind, and in line with Peter Lodder QC’s challenge to shape the future or become the past, Max Hill QC invited Adam Pacifico to address the profession on opportunities beyond the courtroom. During the course of his upbeat address he invited the profession to look into the future and consider how the next generation will expect to receive their legal services. Are chambers and barristers making the most of social media, YouTube, LinkedIn, Twitter? He pointed out that while safeguarding first class advocacy must be the starting point, different revenue streams are emerging. Data and software companies are looking to enter the criminal justice system and some already have barristers as consultants.
The Attorney General began his address by explaining that what the Government wants is the cheap and rapid processing of individuals who are arrested which leads either to them being found not guilty, or found guilty and punished. Provided the procedure is Article 6 compliant, the Government cares little about the detail. Had the Attorney General announced that the Government thought of the criminal justice system in terms of a factory and likened cases to widgets on a conveyor belt, the audience would not have been more depressed nor less surprised.
The Attorney General hinted at yet further change over and above the cuts which have taken place. For example, the efficiency with which individuals were dealt with in the wake of recent riots has made some in the Government wonder whether cases could be dealt with faster more generally.
The Attorney-General touched on the digitalisation of proceedings, the review of disclosure by Lord Justice Gross and the strong perception that there are too many unnecessary adjournments. He was pleased to note the improved relationship between the Criminal Bar and the CPS and hoped that the panel scheme would provide the Criminal Bar with reassurance that the Government believes it is essential that the independent Bar is involved in this work. As to best value tendering, the Attorney General’s advice to the Bar was not to give up making good points.
Jonathan Laidlaw QC cast some light at the end of the tunnel. He outlined impressive plans to build upon the CBA’s already excellent education programme and proposals to engage upon joint training with the Crown Prosecution Service.
“Can we settle this out of court?” Resolving disputes through ADR
Mediation is very much the buzz word at the Family Bar these days. With the recent publication of the Norgrove report, which recommends increased use of mediation, there is a noticeable rush for family practitioners to qualify.
“Now is the time,” according to Caroline Willbourne, who was amongst four speakers at the FLBA workshop entitled “Can we settle this out of court? Resolving disputes through ADR”.
Anthony Kirk QC spoke from the perspective of a specialist mediator in disputes over children. He set out five core principles: voluntary participation, neutrality of the mediators, impartiality, confidentiality of the process and decision-making resting with the participants. He believes one should never force the participants to settle by advising them of the likely outcome in court. In contrast to civil/commercial litigation, which can go on beyond midnight in order to reach a deal, he believes that mediating with parents should be two hours maximum. This should result in joint proposals for both parents to reflect on and return to at a follow-up mediation if required. He spoke of one couple whom he has been mediating for every six months for the last eleven years, as they can’t agree about holiday contact.
“It actually works,” he stated. He said his mediations have an eighty percent success rate, which, however much he charges, must be an attractive option over litigation.
Caroline Willbourne vehemently disagreed with Kirk’s view about the two-hour time limit.
“We go on until we have reached an agreement,” she said. However, she mainly mediates in financial disputes, which both speakers agreed required different approaches. She hugely favours mediation over Financial Dispute Resolutions (a court hearing where attempts are made to reach a settlement), in which clients often feel rushed and bullied into reaching an agreement. She also believes that participants have to be psychologically ready for an FDR to be successful. By contrast, mediation is more laid-back, with opportunities for the participants to take breaks and consider proposals. “I’m a real enthusiast,” she said, adding that “parties have a real sense of achievement” if the mediation is successful. Mediation takes up 25 per cent of her practice time, but because it is so well paid (most of her practice is in the Channel Islands) it contributes to a much higher percentage of her income.
Charles Hale spoke about the changes to the law requiring parties to attempt mediation before bringing an application to the family courts. The recent Family Procedure Rules now place an obligation for parties to attend a MIAM (mediation information assessment meeting), where a mediator will meet with the parties, consider whether either of them are entitled to public funding or agree a fee with them. There are currently no sanctions in place if parties don’t attend mediation, and since April, when the rules came in, judges apparently haven’t attempted to enforce the obligation to attempt to mediate. However you won’t get public funding if you don’t give mediation a go. Hale also mentioned the possible use of ‘Ungley Orders’, traditionally a civil remedy that requires a party at the end of a trial to justify why they didn’t consider Alternative Dispute Resolution an appropriate method of resolving the dispute, with potential implications for costs. Apparently Mr Justice Mostyn is keen on bringing in ‘Ungley orders’ into the family courts.
Ruth Smallcombe comes to mediation with a background as a social worker and a counsellor, as opposed to a lawyer. She talked about the skills and qualifications required to be a mediator. You need three years post-qualification experience in family-related work, which can be either legal, social work, or therapy orientated. Training takes at least 8 days and is assessed. It costs between £2000 - £3000. She stressed the importance of being patient as a mediator, and not being over-reliant on the law, which she views as ‘a blunt instrument’.
The workshop then concluded with a staged mediation of squabbling parents, played by Hale and Willbourne, with Kirk acting as mediator. With their fine comic timing, this performance produced wave after wave of laughter through the audience. In the unlikely event of the death of the Family Bar, these three clearly have the potential to transfer their skills to a more thespian setting.
This lively and thought provoking session ended with an appeal by Andrew Hall QC to the profession to support the valuable work of the Kalisher Trust which awards scholarships to students on the Bar Professional Training Course who aspire to be criminal barristers. In light of cuts to fees coupled with rising course fees, the importance of this charity’s work in providing an opportunity to those who would otherwise be lost to the profession, cannot be underestimated.
Exporting the commercial Bar - organised by COMBAR
Billed as ‘an interactive roundtable discussion’ the COMBAR workshop largely consisted of four interesting presentations, ably moderated by Stephen Moriarty QC of Fountain Court. On the panel and in the audience were members of the legal teams in Berezovsky v Abramovich, the £3.2 billion lawsuit, assisted by the latest IT, and taking place in the new £300 million Rolls Building. The latter’s outstanding facilities were praised by everyone (‘an improvement on conducting multi-million pound litigation in a broom cupboard’ as Mr. Justice Clarke described the old St. Dunstan’s House). Considering the plight of the criminal Bar being dissected elsewhere in the hotel, this was the clearest example of how One Bar more resembles Disraeli’s Two Nations.
In a clever presentation, which seamlessly combined wit and voluminous knowledge, Mr. Justice Christopher Clarke described what the commercial Bar has to offer: good at both mediation and litigation (one or other of which is alternatively in fashion) and with a plentiful supply of competent barristers familiar with doing a range of commercial disputes (70% of which involved a foreign litigant in 2010). He had been impressed by a written submission with 1000 footnotes each of which was hyperlinked to the relevant document or decided case - ‘it saved hours’. The Bar’s ability to comply with good case management received a more mixed report. An attempt to have ‘short and uncontroversial openings’ did not last long - each attempt to streamline procedure usually led to at least one disadvantage. Disclosure could lead to a deluge of material. Witness statements were too long as ‘no stone must be left unturned’. The quality of expert reports had improved ‘but so has their size’. Altogether ‘more is not necessarily better’. Nevertheless, between the Bar and the Rolls Building there was a ‘great product to sell’. However, ‘justice is not a commodity’ and it was not the job of the judiciary to market the services.
Ali Malek QC of 3 Verulam Buildings believed that a lot of litigants used London as a matter of choice. There had been concern that the Judicial Appointments Commission would not pick the best judges but in fact they had. The key question though was ‘what can we do to reduce the cost of litigation?’ He had no difficulty with good case management: ‘I’ve never felt the time restraints were unreasonable’. ‘We have to start changing our habits’ and become more paperless. He accepted Mr. Justice Clarke’s criticisms and agreed that witness statements needed to get shorter. Expert evidence should be cut down. Barristers should get involved more in arbitration, where some solicitors thought that they can do without the Bar since some arbitrators did not ask questions of the advocates. We needed a Rolls Building for arbitration. He warned those present that although it was in theory acceptable for counsel on both sides of a dispute to come from the same set of chambers, in the real world this does not work. There should also be disclosure ahead of time if a barrister also happened to accept instructions from the firm on the other side.
At this point the audience was asked how many had downloaded papers onto their ipad. Not many hands were raised.
Sunil Gadhia, a partner of Stephenson Harwood solicitors, was old fashioned enough to use a flip chart to emphasise his thesis that English lawyers were the most efficient and succinct. He posed some important questions. (i) What is your export strategy? How are you spending your marketing cost? Chambers and its individual members are complementary, so is it ‘every man for himself’ or do you combine resources? (ii) What could you be doing more effectively? The question to the audience to name the most attractive overseas markets only got the obvious responses, leaving it to Ali Malek, QC to add: ‘any common law jurisdiction’. Some countries though had greater opportunities than others. (iii) Marketing on the job? Doing an excellent job was the best kind of marketing. ’90 percent of my work is from referrals’, Sunil said. There were also certain things which the Bar could do better to respond to the expectations of foreign clients, e. g., Indians and Russians wanted a fast response, and there was a need for flexibility over fees with those countries who expect to pay less. Advices should be ‘practical, commercial and brave’ - tell the client the answer or your best guess. Nick Green, QC of Brick Court Chambers spoke of how regulatory changes can assist. He saw strength in the fact that entry to the Bar is ‘acutely competitive’. In terms of cost structure, ‘we are a brain on a stick’.
Direct Access Work In The 21st Century
Nothing epitomises the modern approach of the Bar like public access. Once, the Bar was a purely referral profession, reliant on reputation for work, distanced from the discussion of fees which was left to one’s clerk and able to leave tasks such as letter writing and issuing proceedings to the instructing solicitor. In 2011, the Bar has embraced public access work, which is proving a fruitful source of revenue.
Some aspects of public access continue to feel foreign – the discussion of fees with the lay client was given as an example. These and other issues thrown up by public access work are being tackled head on by the Access to the Bar Committee and its indomitable chair, Susan Jacklin QC, who moderated the session.
Marc Beaumont, Ross Burrows, David Goddard, Kevin Leigh and Anawar Miah made up a strong panel with an obvious wealth of experience in this area. After presentations by each, the workshop turned to discuss six scenarios designed to tease out various aspects of public access work each generating a good deal of audience participation.
The vexed issue of funding presents particular difficulties for the Bar. At present, a direct access barrister cannot accept money on account from his client. However, as was pointed out by the panel, as soon as the barrister’s fee is agreed, the fees paid become the barrister’s money. Therefore the barrister is receiving his money and not that of the client. Nevertheless, more flexible arrangements may be in the pipeline. A special committee has been set up and will be holding its first meeting next week to look at the issue of client funds and in particular at the use of custodian accounts.
The panel were of the view that upfront payment certainly has its advantages so far as cashflow is concerned. However one person pointed out that one would not expect a dentist to require payment before looking into the patient’s mouth. A debate ensued as to the potentially negative impression given by making repeated demands for funds during the life of a case. In the experience of one member of the audience, such an approach can drive away clients and new approaches need to be considered. The panel acknowledged the importance of recognising that clients need us to place trust in them, the prime example of which is a vulnerable wife in a family case whose ability to pay will be determined by the outcome of the divorce proceedings.
The debate moved on to ways in which a client could be assessed for their suitability for public access. As it was put by a member of the panel, one of the privileges of public access work is deciding who rides in your cab. There was universal agreement that this was a skill and an important one. An initial consultation, whether on the telephone or in person, is an invaluable way of assessing whether there is a case and whether it is one that lends itself to public access. Not only does the barrister require some information about the case in order to be able to write the terms of the client care letter, which is in effect a contract between the barrister and the client, but the barrister also needs to be able to advise the client as to whether or not they would be best represented by both a solicitor and a barrister.
This highly enjoyable workshop ended with a topical discussion as to whether the three year rule should be relaxed so that lay clients could, if they so wished, instruct a barrister with fewer than three years practising experience. The point was made from the floor that such barristers are bound by the same code of conduct as all other barristers and therefore they could only take on cases which they were competent to handle. Although a concern was raised that young barristers may be less equipped to deal with difficult clients, it was countered with the point that the barrister is under a duty to assess the suitability of the case and the client at all stages. The last word on the subject, and on the session, came from Susan Jacklin QC, who pointed out that the rule change is about helping the public. Junior barristers are cheaper than senior barristers. If they can do a straightforward case just as effectively and more cheaply then the public benefits. It was a timely reminder that that is exactly what public access is all about.
Think International – the Bar in a Global Market
If there is one export that is on the up, it is barristers’ services overseas. According to Chantal-Aimee Doerries QC (Atkin Chambers), who was chairing the workshop ‘Think International – the Bar in a Global Market’, there has been a year-on-year increase in earnings in overseas work at the Bar. In 2009 these were £134 million, going up to £152 million in 2010.
But where to start?
Anesta Weekes QC (23 Essex Street) gave a talk on working in the Caribbean and wider Commonwealth. She also had tips on how to break into the international market. “Look for the hero inside yourself,” she suggested, tongue-in-cheek, meaning that you need to figure out what unique skill you might have to offer beyond the world of the Temple. If you have a foreign connection, or a language, however basic, then you should exploit it. She recommended joining a body such as the British Council or the Organisation for Economic Cooperation and Development, or any other body with legal links with the jurisdiction you are targeting. She is also a strong advocate for doing international pro bono work, which would then open doors to paid work.
Rupert D’Cruz (Littleton Chambers) spoke about Russia and the CIS, which he said was the most important source of commercial arbitration work for the Bar. However there are also opportunities in the region in family law, extradition, defamation and issues related to the Bribery Act 2010. He is a strong believer in joining a bilateral law society (of which there are 30, all listed on the Law Society website) as a means to find work abroad. And if you want to impress Russian lawyers, he recommends taking them for lunch at one of the Inns of Court.
Amanda Pinto QC (5 Paper Buildings), Vice Chairman of the International Committee, spoke about international opportunities for the publicly funded Bar. She advised attending international conferences, where you should also try and get a speaking slot. She also suggested writing articles for international journals. Direct access is also an advantage, she thinks, as it cuts out the need for instructing you through a solicitor.
Andrew Stevens (4 Pump Court), offered up four tips for breaking into the Chinese market. Firstly, when you go to China, you need a plentiful supply of business cards, both in English and Mandarin. They play an important social role in China: Without them, you lose face. Secondly, when in groups, do not mention the three T’s: Taiwan, Tibet, Tiananmen Square. Thirdly, giving and receiving gifts is important in China (in spite of the Bribery Act 2010). They need to be wrapped in red or gold. Fourthly, you need to go to China a lot, as it takes time to build trust.
Finally Christopher Hancock QC (20 Essex Street) gave a talk on international work in Singapore and South Korea. Singapore has recently established itself as an international arbitration centre, currently attracting 14 jurisdictions from the pan- Asian market including India. He believes that English barristers will be welcome in Singapore, due to their strong reputation. South Korea also is developing similar opportunities.
Amongst the audience was Chairman of the Bar, Peter Lodder QC, who stressed the success of the presence of the Bar at the International Bar Conference in Dubai this year. “The first question you get asked is ‘Can I have your business card?” Attending these conferences will lead to work, he believes.
The World Bar Conference is taking place at Inner Temple next year from 29th June to 1st July 2012.
A glass ceiling: can women achieve success at the bar and progress to the highest levels?
Organised by the Association of Women Barristers and the Bar Council Equality and Diversity Committee.
The Association of Women Barristers (AWB) which celebrates its 20th anniversary this year hosted this debate which resulted in the audience overwhelmingly voting “Yes” to ‘Is there a glass ceiling?’ Kim Hollis QC, of 25 Bedford Row, Chairwoman of the Bar Council Equality and Diversity Committee, acted as moderator, Jane McNeill QC of Old Square Chambers and Nirmal Shant QC of 23 Essex Street argued in favour of the proposition, and Mrs. Justice Theis and Baroness Deech, Chair of the Bar Standards Board, with some reservations, argued against it. Kim Hollis QC began by pointing out salient facts from the Bar Barometer report, a copy of which was on our chairs. Women form half of those who take the BPTC and are Called, but since 2006-7 they have slipped below that in percentage terms for pupillage. They are 34% of the Bar which has not increased much since 2007-8. Then one looks at the judiciary: one woman in the Chancery Division, one in the Commercial Court, three in the Court of Appeal, one on the Supreme Court.
All four speakers related their own circumstances in order to bolster their arguments. Jane McNeill QC recalled life from the early 1980s: ‘times are better’, and there is greater awareness, but there are still ‘barriers of clubishness’. The equality code and regulation can only go so far: we need ‘people who will implement them’. She wondered whether the equality and diversity test for judicial appointments was ‘sophisticated enough’. Young women still lacked the confidence to compete.
Mrs. Justice Theis described her own background: a family of non-lawyers, state education (part of which was in Africa), a non-First class degree from Birmingham University, a pupillage in planning chambers (where there were no women tenants), and two years of squatting before she was given her tenancy in family law chambers in Field Court. ‘I wouldn’t get a pupillage now’, she claimed, the academic bar having been set so high. As chair of the Family Law Bar Association she commissioned a survey of practitioners which produced the evidence that any cuts in legal aid would have a disproportionate effect on women and BME barristers. She had some suggestions: (i) As part of CPD, there should be courses on when and how to apply for Silk and judicial appointments and the application process - these possibilities should be on the radar at an earlier stage of one’s career; (ii) Find, recognise and encourage people to sit in a judicial capacity; (iii) Provide practical encouragement to come back into the profession after a career break. In respect of judicial appointment she believed in ‘diversity in the field, merit in the selection’. The Chairman of the JAC, Christopher Stephens, was in the audience to hear this.
Nirmal Shant QC spoke about the hurdles that women faced. These began with the allocation of work: she herself had faced complex assumptions about what she could do by her clerks. Talent was not developed that way. ‘My initial reaction was to act as masculine as they’ including cutting her hair but she soon realised that ‘being under-estimated could be an advantage’ and ‘sometimes you have to have humour’. She recalled being greeted by a defendant with ‘I thought I was going to see a man’, to which she replied, ‘so did I’. What needed to change was attitude. ‘Be clear what you expect from your clerks, be demanding, but develop a relationship where you can talk to them’. We need to air and share the difficulties and there should be a more comprehensive mentoring scheme.
‘I think there isn’t a glass ceiling’, Baroness Deech began. As a former academic she knows that universities can be difficult too and that medicine can be worse - the hours are longer, there is a club mentality and they cluster in specialities. She put the drop out rate down to history and sociology. Until the 1970s it was not thought to be feminine to study law; today there is more pressure on being a good mother which is seen as the same as being a full time mother. She ended with several recommendations: say yes to everything, stop caring what other people think, think broadly (e.g. joint committees), keep going, and blend your private and professional life. And of course there ought to be a Bar Nursery.