The Modern Bar: our work and our role

Reports from the Annual and Young Bar Conference 2019

Bar Conference Chair Rachel Langdale QC, Chair of the Bar Richard Atkins QC and Chair of the Young Barristers’ Committee Athena Markides at the 2019 Annual Bar Conference and Young Bar Conference on 23 November 2019 brought the profession together to learn from each other’s experience, gain practical insight into key issues at the modern Bar, and celebrate achievements. Expert speakers examined the changing work and role of barristers in today’s legal system and society in a new, streamlined format, with the aim of keeping delegates together rather than breaking out into myriad workshops. Counsel reports back on some of the highlights.

OPENING KEYNOTE: LADY HALE: HERE’S TO THE SECOND CENTURY OF WOMEN LAWYERS

Reporter: David Wurtzel

As delegates registered at the conference we were each given a copy of the hugely informative First 100 Years of Women in Law. Appropriately, the keynote address was a toast to the second century, delivered by Baroness Hale of Richmond with the same clarity in which the nation heard her deal with a rogue prorogation of Parliament. Perhaps her most telling quote was the reaction of her new colleague Lord Hope, to her appointment as the first women law lord: her elevation, he wrote in his diary, was ‘a source of some anxiety’ until the others got used to the ‘kind of contribution she’ll make’.

That, indeed, was one of her main points, that women make a particular contribution. They bring fairness and common sense. ‘There is a pleasanter atmosphere in court’ with women participating. There are other factors too, beginning with the matter of the rule of law. It is there to serve everyone in society, she said, and therefore everyone must feel confident that ‘the law is for them’ and that it reflects the society it serves. There are the principles of justice, fairness and, now, equality. And there is the question of equality of opportunity, and the importance of not wasting talent. The Bar, she said, with the long hours culture, is still structured for people without outside responsibilities.

How can more be done? Not enough women apply for silk, but ‘mentoring can help’. Women sometimes do not get the kind of work which would qualify them to apply for silk, so it is ‘up to chambers and instructing solicitors to realise that they have a crucial role to play here’. ‘Not all women are feminists but some men are,’ she concluded. Allies are welcome.

CONTEMPORARY ISSUES FOR CRIMINAL AND FAMILY LAWYERS

Reporter: David Wurtzel

In this excellent workshop, three important issues facing family and criminal barristers were analysed by three pairs of senior practitioners who relied on their extensive personal experiences. The Rt Hon Lord Hughes of Ombersley was in the chair. The topics were child witnesses, expert witnesses, and parallel proceedings.

Child witnesses

Kama Melly QC (crime) described a flagship regime in Leeds, which was one of the section 28 (pre-recorded cross-examination) pilot courts. The criminal Bar had always opposed section 28, declaring that it would never work. It has in Leeds. Children of any age are assumed to be competent, advocacy has been appropriately adapted, counsel are learning to expand their questioning, Registered Intermediaries are regularly used, Ground Rules Hearings properly take place a week before trial, questions are precisely hammered out in advance, and there has been no adverse impact on the conviction rate. It has meant that a child’s evidence was completed months sooner than if they had had to wait for the trial date.

James Mulholland QC (crime) fell back on generic pessimism, predicting that when section 28 is fully rolled out nationally, the disclosure timetable will be scuppered by under-funding for those obliged to comply with it. A delegate’s question asked whether it would not be in the better interest of children to have the trial, with them participating, brought on much sooner.

Janet Bazley QC (family) explained how different things are in her area. Family law does not expect a child to give evidence but instead balances the benefit with the harm to the child of doing so. ‘Some children want to be heard,’ she said, and cited examples where this was successfully done from remote live link locations. In addition, she has done a case where the evidence consisted of an interview between the child and a psychiatrist asking pre-agreed questions. Alex Verdan QC (family) saw the family courts as ‘protective and paternalistic’ even to teenagers.

Expert witnesses

Sally Howes QC (crime) explained that a major problem for the defence is getting funding. The number of experts depends on the nature of the injuries. In family law, Alex noted that there is the initial hurdle of obtaining permission to call expert evidence which has to meet the criterion of being ‘indispensable’.

Beyond that, everyone faced similar challenges. Sally said the big issue is whether the expert is in current practice and can say when he last saw such a situation. She recommended writing an Advice setting out the areas needed but without restricting what the expert thinks is helpful. ‘The best expert,’ she said, ‘is the expert with the open mind’ who will concede points. Lord Hughes of Ombersley, the moderator, reminded everyone that an expert’s answer is supposed to be the same no matter who asks the question but Janet still resists stating who she is representing before she starts her examination of the witness.

The panel diverged on the matter of how to use the evidence of clinicians. Alex thought they should give evidence of fact and opinion even if it is more of a ‘snapshot opinion’ ‘rather than the overview’. Sally leaves the clinician to deal with the narrative and prefers instructing an independent expert.

Parallel proceedings

Nowadays the timetable for family cases means that they come on more promptly than the corresponding criminal trial. There follows the problem of disclosure. The police are initially given a list of material from which they have to ask for all or some of it. This creates the risks of not asking for what might turn out to be significant or of being inundated with everything with consequent delays. In the experience of Hari Kaur (family) ‘the police want everything on the index’. Kama has done joint hearings with all counsel and both judges but there is inconsistency across the country in doing this.

There was the question of whether the family matter can be reopened on the basis of what then emerges in the criminal trial. Janet did have such a case but Lord Hughes noted that in general the family courts have to get on with things or risk the children remaining in limbo.

As time ran out, Lord Hughes noted that there had been no opportunity to discuss privilege and compellability. Still, the time allotted to the panel was well used, and delegates were able to contribute. Lord Hughes produced a master class in how to chair such a forum and how to get the best out of everyone.

COMMERCIAL DISPUTES: THE WAY FORWARD IN AN UNCERTAIN AGE

Reporter: Desiree Artesi

Mrs Justice Carr opened the commercial disputes session with characteristic efficiency and wit. The session had something for everyone. From ‘charming bureacracies of an old-world kind’, ‘horsetrading’ and ‘the emotions of family law versus the cold arguments over money in commercial disputes’, to ‘moving from a pyramid to a rocket structure in future organisations of law firms’.

First up was Sarah Crowther QC who, we found out, once tap-danced for Cambridge. Sarah’s headline was that in the context of European Union law, the principle of reciprocity is a key driver, and that Brexit may undermine that principle, making the enactment of domestic legislation likely to be imperative. She spoke of the hope for optimism and identified two risks of talking about Brexit in this context. The first is the uncertainty, and the second is the danger of being overly focused on the negative aspects that this particular divorce brings with it.

Another key principle of EU law, harmonisation, was also examined through the prism of the effect of a disruption of that harmonisation by the Brexit process on claimants. What of the transitional arrangements contained within the Withdrawal Agreement? Again, an area of uncertainty as to how this will impact on claimants post-Brexit. Sarah, however, did see optimism in a number of future positive options which the United Kingdom could embrace. An example is becoming a signatory to the Lugano Convention. Another is negotiation of cooperation between the EU 27 and the UK.

The second theme focused on another area of law reliant on the principle of reciprocity, the Motor Insurance Directive, its cross border aspects and agreements being likened to charming bureaucracy of an old world kind. There was no shying away from the conclusion that the reciprocity which underpins the scheme and upon which most claims rely, in Motor Insurance Bureau claims, will be lost.

Next up was David Joseph QC. David climbs mountains and sings opera. (To think of all the wealth of talent we have at the Bar. Not so long ago I wrote a piece for Counsel about bell ringers amongst us, but I digress). David spoke about cross-border contractual claims, the enforcement of exclusive jurisdiction clauses and arbitration agreements. In relation to the first, there is much uncertainty, compounded by the very short time frame within which Brexit has to be effected (the extensions which have delayed leaving have simply shaved time off any subsequent transitional period). The best hope is that the UK becomes a Lugano state, but that is likely to be caught up in all the expected post-Brexit horse-trading and admission as a signatory depends on unanimity; each of our 27 former EU partners will have a right of veto. David’s gloom on the topic seemed not exclusively the result of having to work out how much of a 500 page text-book in which he has more than a passing interest will require urgent revision.

In relation to exclusive jurisdiction agreements, David suggests that the UK could become a signatory to the Hague Convention – even taking into account important exceptions and caveats. On non-exclusive jurisdiction agreements, the English courts do enforce them, and post-Brexit this is likely to remain unchanged. There is, therefore, no need to worry needlessly.

Arbitration agreements have not, historically, depended on Brussels but on the New York Convention, ‘the most successful convention in the history of mankind’ (a description David succeeded in delivering without calling to mind Jeremy Clarkson; something more difficult now I see it written down) and in this area at least, Brexit is unlikely to have any substantial impact.

Food for thought for commercial practitioners: arbitration is rapidly becoming the dominant means of dispute resolution. If you are not already on board, what are you waiting for?

Sally Harrison QC found herself as a family specialist silk sandwiched between heavyweight commercial silks and notwithstanding packed a powerful punch. She was an interesting and engaging speaker who peppered her speech with personal experiences, for which I am sure the junior members of the profession were extremely grateful. She pointed to a number of lessons which family law and commercial law can learn from each other. For example, better case management, limiting disclosure to reflect the precise issues in the case, managing the evidence (currently in the family jurisdiction there is power for the trial bundle to be limited to 350 pages, and electronic working (e-filing and e-bundles).

Importantly, Sally points to the increasing viability of the use of arbitration in matrimonial financial proceedings. This guarantees a level of privacy which is much sought after by high net worth individuals.

Sally’s takeaway was that barristers and legal practitioners will all continue to play a vital part in the futuristic world of artificial intelligence and online courts, ensuring that litigants are allowed to have their cases heard swiftly, fairly and cost effectively.

Tom Leech QC gave the conference insight as one who had spent years in self-employed independent practice but is now in-house at a solicitor’s firm. Tom focused on the changes from commercial viability angle, including the impact of these changes on advocacy and the ability of the junior members of the Bar to gain invaluable experience.

Tom had the advantage of once being a dancer in a club in Blackpool and so he was well qualified to keep the audience tuned to his every word.

Members of the audience were challenged to think of the answer to the question, what will a law firm look like in 10 or 20 years’ time? (The answer being relevant not only to solicitors but barristers as well because of the close and often symbiotic relationship between the two professions.) Tom agrees with the analyses of Professor Richard Susskind and posits that the organisational structure of the typical law firm will move from the pyramid structure to more of a rocket shape. Tom’s views were gleaned from wide and varied sources, such as Sir Geoffrey Vos, Chancellor of the High Court and Sundaresh Menon, the Chief Judge of Singapore.

What is certain is that the rise of artificial intelligence, online dispute resolution, smart contracts and reform of the established court-based system, are all factors which are likely to significantly impact the shape and function of the legal landscape of the future.

YOUNG BAR OPTION: TROUBLESHOOTING TIPS: WORKING WELL WITH CLERKS, CLIENTS, LEADERS AND JUDGES

Reporter: Georgina Blower

Expertly led by Athena Markides, Chair of the Young Barristers’ Committee, the panel provided insightful, helpful and practical advice on working well with clients, clerks, leaders and judges. This excellent seminar, aimed at those in the early stages of a career at the Bar, tackled issues from using social media to preparing for second-six pupillage.

Rebecca Priestley, who has operated at every level of the legal supply chain and is currently the Chief Executive of Outer Temple Chambers, provided her recommendations for impressing clients. She emphasised the importance of counsel understanding the client’s business, the governance through which decisions are made and the pragmatic and reputational issues involved in taking a particular course of action. This, Priestley said, is what distinguishes the brilliant and commercial barrister from the mundane one. When undertaking written work, Priestley advised providing an executive summary and clearly identifying the risks, options and recommendations upfront. Clients look for clarity and certainty of advice, flexibility and pragmatism from counsel. She explained that the end-to-end client experience, from the first interaction with Chambers to the follow-up at the end of the case, is paramount. Priestley explained that ‘every stage in that service has to be brilliant’ and warned against unhelpful, arrogant and unresponsive service. She also emphasised the ability to build personal relationships, explaining that it is no longer enough to be intellectually brilliant. It is ‘intellectual firepower and people skills’ that generate repeat instructions.

What should you do if you make a mistake? Early proactive communication with the client is essential. It is better to telephone or see the client in person as emails can be misread or misinterpreted. The best approach is to admit fault, be honest and offer solutions to fix the problem. Relationships are more likely to be salvaged if you deal with the situation with integrity.

In terms of building a successful relationship with your clerks, Amy Rogers, a commercial practitioner from 11 King’s Bench Walk, explained that communication is the key. She advised speaking openly with your clerks and avoiding treating them as part of your client base. Rogers recommended escaping the ‘veneer of saying “yes” to everything’. If there are points where work is overwhelming, clerks can be the first line of defence, helping to preserve the client relationship. When it comes to long-term career planning, don’t assume that the clerks are mind readers and know your professional aspirations. Speak to them.

How should you tell your clerks if you are too busy to undertake a piece of work without disappointing them? The panel considered that barristers have to sometimes be firm when rejecting cases to avoid compromising their work but giving reasons why can help soften the blow. Rather than giving a hard ‘no’, consider offering brief telephone advice or an alternative deadline for written work.

Andrew Powell, a specialist in family law at 4 Paper Buildings, provided his top tips on being a good junior. He encouraged establishing boundaries as early as possible and asking the leader what is expected of you. Build a rapport with them. Talk to other juniors who have been led by your leader before you start to get an indication of their working methods. Be flexible but also remember that your own wellbeing is important.

The Secret Barrister, a criminal practitioner, best-selling writer and whistleblower on the failings of our criminal justice system, attended virtually in James Bond-esque style from an unknown location. With the assistance of a laptop and a man known only as ‘Simon’, messages were conveyed between The Secret Barrister and the audience. We were assured that ‘Simon’ is definitely not The Secret Barrister because ‘Simon’ is not actually a barrister at all, but, in fact, the Chief Wildlife Pathologist for London Zoo. With their characteristic charm and wit, The Secret Barrister provided invaluable advice on how to win over a hostile courtroom. First, prepare in advance. Even the most inflamed judge can be soothed by the preparation of a helpful skeleton, schedule or note on the DCS alerting the court in advance of any issues. Secondly, don’t bullshit. If a judge points out an obvious hole in your argument, don’t persist with an atrocious line of reasoning. If your point is inarguable and unsalvageable, accept your error and move on. Thirdly, The Secret Barrister advised advocates to ‘smile – it’s hard to be really crushing to a happy, smiling face’.

What advice would the panel give pupils starting their second-six? Powell said ‘don’t be afraid of the clerksroom’ and ‘make yourself present and known’. Rogers recommended attending marketing events in Chambers. Don’t be put off by your lack of seniority. There is value in meeting people, and clients may remember you later. Be open-minded and willing to try new and unexpected areas of law, Markides suggested. Don’t be afraid to ask questions. The Secret Barrister suggested showing willing by calling solicitors before and after hearings, even small hearings, to discuss the case.

What about using social media? It is a powerful tool but must be handled with care. Priestley stated that Chambers need to think about how social media can be deployed as part of a structured business strategy as its uncontrolled use is not advisable. Powell suggested using Twitter as a voyeur to assimilate information rather than posting anything. The Secret Barrister explained that there is a reason why they are anonymous. It would have been impossible for them to have written freely in their own name, particularly in the early stages of their career. They advised always remaining professional and avoiding politics.

Finally, is it possible to remain optimistic as a junior criminal practitioner? Markides said that things at the criminal Bar were improving. Through the Bar Council, Young Barristers’ Committee and Criminal Bar Association, the Bar is now working in a much more structured way with different government departments and is pitching for funding in a much more intelligent way, underpinned by evidence. The Secret Barrister stated: ‘We have more fighting to do but there is light at the end of the tunnel. I also think we are slowly getting media attention that we wouldn’t have had a few years ago and there is some public recognition of what we do.’

NEGOTIATION MASTERCLASS

Reporter: Georgina Blower

Presented by Sue Williams, an expert negotiator, this extraordinary masterclass was an enthralling and demystifying insight into the little-known world of the professional kidnap and hostage crisis negotiator. Williams worked for the Metropolitan Police Service for many years, including leading both the Kidnap and Hostage Negotiation Units at Scotland Yard. She now negotiates mainly for international charities and NGOs in dangerous parts of the world when locally employed people are kidnapped.

Williams explained that negotiations can last from a few minutes to several years and the purpose of negotiation is sometimes not to problem solve but simply to buy time. She explained that Stockholm Syndrome has genuine impact and also kidnappers can over time start to sympathise with their hostages and the negotiator as well. Negotiation can also lower the expectations of the captors, a vital strategy when operating under a no-concession policy.

Williams described some of the key principles of her work. She stated that ‘it’s not about right or wrong, or winning or losing, because it’s not a battle’. She explained that she cannot go into situations with prejudice as this inhibits her ability to do her job. Negotiation ‘requires a mind-set of discovery, curiosity and flexibility’.

She has three mantras, she explained, or rather she now has two since Brexit hijacked the third one: ‘No deal is better than a bad deal.’ First, you must ‘understand before you can seek to be understood’. She emphasised that we must peel back the layers and get beneath the surface to see a situation from the other person’s point of view. Secondly, ‘change what you can control; influence what you cannot’.

According to Williams, ‘negotiation is completely about listening’ and ‘there is no place for egos’. When you listen, you gain knowledge. When you gain knowledge, you gain power. Building a rapport is fundamental.

A successful negotiator must create options, limit the emotion, know what is negotiable, and who the decision-maker is. It is also important for negotiators to create a sense of calm and normality and ensure that the process is structured. The negotiator must understand that the wrong choice of words can cause harm or hurt. Deadlines must be taken seriously. Preparation must be meticulous, and political and cultural intricacies need to be fully considered.

Williams then suggested some commonalities between her work and the barrister profession, namely: we must both work to deadlines under pressure; we must work within the law; we have to earn the right to communicate; and we must manage stakeholders. Finally, she concluded that ‘negotiation is about getting into someone’s head without leaving an entry wound’.

During the Q&A session, Williams was asked what her top tip would be for members of the Bar Council and Criminal Bar Association going into negotiation with the Ministry of Justice. Her response was to consider face-saving techniques and ‘look for the leverage’. Watch this space!

COURT REFORM – LADY JUSTICE THIRLWALL; ADDRESS BY ATHENA MARKIDES (YOUNG BAR)

Reporter: Rawdon Crozier

It was a shame Lady Justice Thirlwall wasn’t there to hear the address later in the day by Athena Markides, this year’s Chair of the Young Bar, which maintained the high standard set last year by her predecessor, Rick Hoyle. Thirlwall LJ was talking about court reform and, for the most part she did so in the same starry tones so familiar to anyone who’s ever listened to the Head of HMCTS, Susan Acland-Hood. It was only when she came to the pitiful state of the Court Estate, the leaking roofs and worse that afflict many courts, that something that sounded more steely and more questioning glimpsed through. Thirlwall LJ said she could talk for England on the subject of court reform and no-one who heard her would have questioned the veracity of that statement as statistics tripped off her tongue.

What those statistics showed is, however, that while an extra £1bn is being made available for ’Improving Justice’ and ‘Improving Access to Justice’, that is partly going to come from selling off courts and will be ring-fenced for improvements, while the basic annual budget of £1.6bn is going to be reduced by a further £244m, which will include a reduction in court staff. Of the £1bn, £270m is to be spent developing the Common Platform for crime, £280m on a Common Digital Platform for courts & tribunals in family & civil and £230m on the Court Estate but only on new projects such as turning the Newcastle Combined Court into a criminal justice centre and rehoming the civil and family courts in a the former civic centre.

Another innovation about which Thirlwall LJ told the conference was administering more civil and family work from ‘service centres’ modelled on the CCMCC, adding, perhaps a shade adventurously, that it really was amazing how good the CCMCC is. She extolled the virtues of online divorce but did seek to give reassurance that no-one would be forced into going digital. It was noteworthy that when the journalist Catherine Baski asked how concerned Thirlwall LJ was about judges being complicit in the push to online to save costs the question received a spontaneous round of applause from the audience – but not an answer. It was perhaps inevitable, having already warned that she would not trespass into politics, that when the next questioner asked about the closure of Hammersmith Court, the answer was: ‘That is a decision that was taken politically and I have nothing to say about it.’

To all this, Athena Markides provided an interesting counterpoint and, to the extent that an address which started with a disclaimer of any single ambition could be said to have had an overarching theme, it was that the delivery of legal services had become divorced from the idea of the delivery of justice.

Citing research, in its early stages, which was beginning to indicate that witnesses giving evidence on video were likely to be judged more prejudicially, Markides questioned whether the trumpeted commitment of HMCTS to ‘Access to Justice’ was matched by the identification of measurable benchmarks to establish whether it was being delivered; how, if the research was borne out by further studies, she asked, could it be said people were being being given access to justice, simply by virtue of making it easier to 

Category: 
Issue: 
Author details: 
David Wurtzel

David practised at the criminal Bar for 27 years and is a door tenant at 18 Red Lion Court. Prior to his retirement, he was a consultant in the CPD department at City Law School and consultant editor of Counsel. David is a member of the Counsel Editorial Board.

Rawdon Crozier

Rawdon Crozier is a barrister at KBG Chambers, Plymouth, specialising in property law. He is a member of the Counsel editorial board, writes for several legal journals and also writes poetry. In 2015 he went straight from Arnold v Britton [2015] UKSC 36 in the Supreme Court to starting chemotherapy and ‘got the right result in the latter’.

Desiree Artesi

Desiree is a member of Thomas More Chambers and a Bencher of Inner Temple. Called to the Bar in St Lucia in 2004, she has been a member of the BSB Conduct Committee and the Bar Council’s Professional Practice Committee. She is now a member of Counsel’s Editorial Board.

Georgina Blower

Georgina is a criminal barrister at Farringdon Chambers and a member of the Counsel Editorial Board.