I met him in Brick Court Chambers, where by coincidence I did my first pupillage at a time when it had a fraction of the current membership and was crammed into rooms in the Temple. Now it spreads over a luxuriously-appointed building off Essex Street, looking and operating on a level commensurate with its lay and professional clients.

Nick is a specialist in competition and regulatory law, a practice which takes him to Europe, Hong Kong, Singapore and the US. Although he always wanted to go to the Bar, he was an academic for four years and has authored a book and 60 articles. He is one of the handful of Bar Chairmen not to have gone to Oxford or Cambridge.

He is thus very well placed as Chairman to promote the Bar’s “developing trade overseas” and to deal with the many issues which will be raised by Jackson LJ’s review of costs in the civil courts. At the same time he has the necessary background in regulatory disputes, and in analysing the underlying economics and cost structure of companies. It means that he is on top of the regulatory matters which affect the entire Bar and most recently the question of whether the Crown Prosecution Service (“CPS”) is actually saving money by deploying in-house advocates rather than instructing the Bar (“this is meat and drink to me”).

As a schoolboy he achieved success in sports before he did in exams. “I spent a good deal of my formative teenage years with my head under chlorinated water”, he is fond of recalling. In fact he competed internationally for Britain and later swam for British universities. It was only when the amount of training impacted on his knees that he settled down to serious schoolwork, in time for his A levels. He still swims to keep fit and periodically takes part in Masters’ competitions in which he regularly comes across his “old mates” from 35 years ago—still competing and still colleagues, which sounds remarkably similar to life at the Bar.

He became a member of the Bar Council nearly ten years ago, after being chairman of the Bar European Group and soon was on the General Management Committee, which exposed him to everything that was going on. He was conscious of how the Bar, pre the Bar Standards Board (“BSB”), dealt with regulatory matters which—relative to today—he found to be “amateurish”. The BSB, with whom “the relationship is terrific,” has gained in focus, intensity and experience and although rightly jealous of their independence and their need to protect the public interest, are “much more responsive to what is happening at the Bar”.

Survival strategy?

The BSB has now taken its historic decision permitting new types of business structures whilst seeking to preserve the traditions of the Bar. Which brings us to the question of how the publicly funded Bar is to survive the present perceived crisis.
The pressure has come in two significantly different ways:

  • Firstly, for five years the CPS has been developing a large in-house force of Crown Advocates, who now do circa 27 per cent in value of prosecution work and increasing.
  • Secondly, changes in legal aid fee structures have meant that both defence solicitors and family law solicitors consider it necessary to their financial survival to do increasing amounts of their own advocacy. The “Carter round” which was announced as a success for the criminal defence Bar in raising advocates’ fees, in fact, as we realise too late, provided the economic incentive for litigators to go into the Crown Court themselves. Since all these lawyers have the right of audience, the Bar possesses no veto over them exercising it.

The CPS at least is an organisation with whom the Bar can negotiate. Talks have been going on since mid-2008, in “Chatham House discussions”. I asked Nick what the Bar’s endgame is, a question to which one has been awaiting an answer for some time. “The Bar needs stability”, he replies. “The criminal Bar needs to be able to plan for the future”. There must be an understanding as to the extent to which the CPS will grow; the Bar would then have access to the rest of the market. “Once you’ve got stability you can build on top of that”, such as joint training and quality assurance. Nick believes in common agreed standards of advocacy, which appear easier to agree than to enforce, though there would have to be some sanctions in whatever system is used. However, it is unclear whether these will in fact prove to be the panacea that some suggest they might be.

The problem which the growth of criminal defence and family higher court advocates poses to the publicly funded Bar (there is no comparable threat to the civil and commercial Bar) is different. There is no organisation with whom to negotiate. “Quality is not going to see us through and economics are against us”. There is no method of stopping them going into court. And indeed the Bar recognises that they are of course fully entitled to practice in the courts.

The fight back

The answer then is to fight back and to enable the Bar to compete on a more level playing field. Restrictions need to be removed “which prevents the Bar from being imaginative”. In his many meetings with the Circuits and with individual sets of chambers, Nick has found very little interest in barrister-only partnerships but a great deal of interest in various models in which a chambers-owned procurement company, for example, would bid for contracts with the Legal Services Commission (“LSC”). Chambers would thus compete against firms of solicitors (and other barristers) and although they would still operate as chambers they would have “greater flexibility” to respond to market conditions thus enabling them to cut out the solicitors by providing better and cheaper advocates. The Bar might be less of a “referral” profession but that process began some years ago with the establishment of direct access. “All the things that made us unique are largely gone”. The rules which in the past we could point to which differentiated us from solicitors (exclusive rights of audience; only accepting instruction from other lawyers) have been swept away. However the Bar’s function as specialist advocates is crucial and remains a given. The new rules will seek to preserve the best traditions of the Bar but at the same time enable chambers to spread their wings in more creative ways. However he makes it clear that no one is being compelled to go down a particular model; the Bar Council will not prescribe but simply hopes to provide the opportunity for chambers to follow their own course.

Advocacy consumer

As a Recorder since 2004, Nick is himself a “consumer of advocacy”, sitting at Snaresbrook Crown Court. “I enjoy the intellectual challenge. It is completely outside my comfort zone” but “I find myself engrossed in the drama going on in front of me”. He also finds that the vast majority of advocates “are really very competent”. He has only been successfully appealed once on sentencing, a case where neither advocate told him that the relevant law had been changed by a statutory instrument. He is concerned that leading civil practitioners seem to fail the Judicial Studies Board Recorder tests where everyone is supposed to have an even chance.
He was helped in learning advocacy by sitting behind men like Jonathan Sumption QC (“incredibly logical, so clean, so crisp”) and [Mr Justice] Christopher Clarke (“like listening to poetry in motion”). He concluded that there is no single route to “good advocacy” but there are numerous routes to “effective advocacy”.

Nick’s sense of realism extends to the government, with whom he will have to negotiate (“the government is obsessed with extracting short term savings out of the system” without proper regard to or costing of the consequential costs of wrongful convictions and social breakdown). He supports diversity at the Bar (“it is part of our survival strategy” that “we have to be reflective of the people we’re representing because that is how we get work”). He has been considering the viability of the Bar setting up Conditional Legal Aid Fees, which could take the place of conditional fee agreements if the latter become unattractive, although it means that the investor who backs the litigant’s costs would receive a percentage of the damages.

Vision for the long-term future?

All new chairmen are asked for their “vision” for the year ahead. I asked Nick Green instead what he thought the Bar would look like in 2015. “I would want to see the Bar as comprising specialist advocates focusing on its core skills.” “We will continue to be the choice place for advocacy.” “I would like to help the Bar modernise and I very much wish to restore a sense of stability to the publicly funded Bar.” It sounds modest but in the current climate it might prove to be a great achievement indeed.

David Wurtzel is Counsel’s Consultant Editor