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Rebecca Wilkie explains how pro bono can become an intrinsic part of your silk application
In 2020, the Queen’s Counsel Selection Panel specified that pro bono cases can be used to support applications for silk. Since then, there has been an increase in candidates using their experiences volunteering through Advocate and other organisations to help them progress their careers to the next level. In 2022 alone, five of Advocate’s reviewers took silk.
Sir Alex Allan, immediate past Chair of the Selection Panel, noted that: ‘… pro bono work can often assist applicants for appointment as QC. In addition to sometimes helping to demonstrate the diversity competency, pro bono work may give applicants the ability to demonstrate excellence in oral advocacy, particularly where the applicant practices in an area of work where they do not routinely undertake contested oral advocacy.’
The application form requires an applicant to ‘provide both evidence of an understanding of diversity issues, including those affecting the profession as well as those affecting users of legal services, and evidence of proactivity’.
For criminal, family and employment barristers, this is their bread and butter as contact with the general public is an everyday occurrence. But for commercial, chancery and other specialisations that mainly include working for corporates, it can be a more difficult section to complete. This is where doing pro bono work can really pay off.
One example is Andrew de Mestre QC from 4 Stone Buildings, Chair of the Chancery Bar Association’s Pro Bono Committee and coordinator of the Chancery Litigant in Person Scheme (CLIPS), an on-the-day duty scheme in the Chancery Division Interim Applications Court where volunteers turn up to court and help any litigants in person that need advice. While seemingly a terrifying prospect with such little preparation time, judges are typically extremely well-disposed to anyone who appears before them. In fact, it was while appearing in court on one of these cases that the judge suggested that Mr de Mestre apply for silk and use her as a referee on his application form.
Lord Justice Nicholas Underhill wholeheartedly agrees: ‘On the bench, particularly as President of the EAT and now in the Court of Appeal, I have had the benefit of pro bono advocacy in innumerable cases. It is a win for counsel, not only because of the experience that they gain but also because judges take special note of good advocacy from those appearing pro bono and that may stand them in good stead at later stages of their career.’
Advocate reviewer, Sarah Abram from Brick Court, will be appointed QC in 2022. She says: ‘When you’re a commercial barrister, your regular cases don’t always give you the opportunity to provide evidence of how you deal with diversity issues. I used pro bono examples across the whole of my career for this purpose on my application form. I referred to a case I’d done ten years ago for Advocate in which I acted for a person who wanted to be a professional pianist. She had a number of physical and mental health problems that prevented her from practising outside her home, but was served with a noise abatement order. I challenged and overturned that order, and she was able to pursue her dream career.’
The application form requires barristers to discuss 12 cases they have been involved in and the guidance states that ‘it is necessary both for the case as a whole to be an important or substantial matter and for your role in it to have involved challenging and substantial work’.
It is not an unusual occurrence for pro bono cases to involve complex points of law or end up in the higher courts. Mathew Purchase QC from Matrix Chambers applied for silk in 2019 and used a pro bono example as one of his core cases. He acted for the parents of a young disabled child who had been refused access to his nursery during lunchtimes and afternoons because of the care he needed for his disability-related needs. Mr Purchase appeared before the First-tier Tribunal before appealing to the Upper Tribunal and winning.
When asked why he included this case, Mr Purchase says: ‘For two reasons. First, the case was of some significance. It raised a number of important questions of law (such as the extent to which it is possible to rely on cost/resources when considering a claim for a failure to make reasonable adjustments and whether the FTT’s misunderstanding about the respondent school’s financial resources could be characterised as an error of law when it arose from a failure by the school to disclose the true position). Second, the fact that I did the case pro bono, and the nature of the particular case, was relevant in itself to some of the criteria, such as showing a commitment to equality and diversity.’ The case also appeared in the law reports, another element that the Selection Panel looks out for.
Rory Mullan QC from Old Square Tax Chambers also used a pro bono case that raised a lot of difficult legal issues: Butt v HMRC. Mr Mullan represented a taxpayer who had been subjected to a huge VAT penalty in circumstances where the law was far from clear, raising an issue of whether the penalty should be applied at all. He initially acted (with another colleague from chambers) pro bono before the First-tier Tribunal before representing Mr Butt at the Upper Tribunal and then before the Court of Appeal.
As Sir Alex pointed out, it can be difficult for some barristers with more desk-based practices to present cases in court and cut their teeth on advocacy before judges. This can also apply to barristers doing commercial work, who are stuck in the Catch-22 of not being able to lead cases until they become a QC but who cannot reach QC without the experience of being unled on their feet in court.
In Ms Abram’s view, there is no reason why a commercial barrister shouldn’t be able to find pro bono cases to take on, even if outside their usual area of practice. She says that she’s a strong believer that commercial barristers don’t just need to do commercial law. ‘The job of a barrister is all about educating yourself in a new bit of the of law, becoming an expert in it and doing a case. We don’t say no to cases just because we don’t know the answer to them. It is inherent in the job that we find out what the answer is. There is no reason why commercial barristers shouldn’t do cases that raise employment or social security cases.’
In addition, anyone whose practice revolves around regulation can also find it presents unexpected problems when applying for QC. Clinical negligence specialist, Andrew Kennedy QC from 1 Crown Office Row, used a case he took on pro bono as one of his 12 listed cases. He explains that it ‘had the potential to provide me with a case before a High Court judge. Regulatory work is largely before professional tribunals and in the past (there has been a chance with legally qualified chairs) it has not been possible to name cases on the silk application form.’
There are many ways to include pro bono in your career at any stage. Become an Advocate reviewer or mentor, or partner with one of the many other brilliant charities in need to people to represent their clients. If pushed for time, spend a couple of days a year volunteering for the Employment Litigant in Person Scheme or CLIPS, both of which have limited time commitments.
In the opinion of Mr de Mestre, ‘It’s never too late to start volunteering. I see first-hand from the testimony of litigants in person, Judges and volunteers how pro bono assistance is not just critical to the operation of the legal system, but is professionally and personally rewarding.’ It may also just get you a lovely new gown.
If you are interested in becoming an Advocate reviewer or mentor, please contact Bryony at bwells@weareadvocate.org.uk
Rebecca Wilkie was the Chief Executive of Advocate from 2007 to 2015 and from July 2020 to the present.
In 2020, the Queen’s Counsel Selection Panel specified that pro bono cases can be used to support applications for silk. Since then, there has been an increase in candidates using their experiences volunteering through Advocate and other organisations to help them progress their careers to the next level. In 2022 alone, five of Advocate’s reviewers took silk.
Sir Alex Allan, immediate past Chair of the Selection Panel, noted that: ‘… pro bono work can often assist applicants for appointment as QC. In addition to sometimes helping to demonstrate the diversity competency, pro bono work may give applicants the ability to demonstrate excellence in oral advocacy, particularly where the applicant practices in an area of work where they do not routinely undertake contested oral advocacy.’
The application form requires an applicant to ‘provide both evidence of an understanding of diversity issues, including those affecting the profession as well as those affecting users of legal services, and evidence of proactivity’.
For criminal, family and employment barristers, this is their bread and butter as contact with the general public is an everyday occurrence. But for commercial, chancery and other specialisations that mainly include working for corporates, it can be a more difficult section to complete. This is where doing pro bono work can really pay off.
One example is Andrew de Mestre QC from 4 Stone Buildings, Chair of the Chancery Bar Association’s Pro Bono Committee and coordinator of the Chancery Litigant in Person Scheme (CLIPS), an on-the-day duty scheme in the Chancery Division Interim Applications Court where volunteers turn up to court and help any litigants in person that need advice. While seemingly a terrifying prospect with such little preparation time, judges are typically extremely well-disposed to anyone who appears before them. In fact, it was while appearing in court on one of these cases that the judge suggested that Mr de Mestre apply for silk and use her as a referee on his application form.
Lord Justice Nicholas Underhill wholeheartedly agrees: ‘On the bench, particularly as President of the EAT and now in the Court of Appeal, I have had the benefit of pro bono advocacy in innumerable cases. It is a win for counsel, not only because of the experience that they gain but also because judges take special note of good advocacy from those appearing pro bono and that may stand them in good stead at later stages of their career.’
Advocate reviewer, Sarah Abram from Brick Court, will be appointed QC in 2022. She says: ‘When you’re a commercial barrister, your regular cases don’t always give you the opportunity to provide evidence of how you deal with diversity issues. I used pro bono examples across the whole of my career for this purpose on my application form. I referred to a case I’d done ten years ago for Advocate in which I acted for a person who wanted to be a professional pianist. She had a number of physical and mental health problems that prevented her from practising outside her home, but was served with a noise abatement order. I challenged and overturned that order, and she was able to pursue her dream career.’
The application form requires barristers to discuss 12 cases they have been involved in and the guidance states that ‘it is necessary both for the case as a whole to be an important or substantial matter and for your role in it to have involved challenging and substantial work’.
It is not an unusual occurrence for pro bono cases to involve complex points of law or end up in the higher courts. Mathew Purchase QC from Matrix Chambers applied for silk in 2019 and used a pro bono example as one of his core cases. He acted for the parents of a young disabled child who had been refused access to his nursery during lunchtimes and afternoons because of the care he needed for his disability-related needs. Mr Purchase appeared before the First-tier Tribunal before appealing to the Upper Tribunal and winning.
When asked why he included this case, Mr Purchase says: ‘For two reasons. First, the case was of some significance. It raised a number of important questions of law (such as the extent to which it is possible to rely on cost/resources when considering a claim for a failure to make reasonable adjustments and whether the FTT’s misunderstanding about the respondent school’s financial resources could be characterised as an error of law when it arose from a failure by the school to disclose the true position). Second, the fact that I did the case pro bono, and the nature of the particular case, was relevant in itself to some of the criteria, such as showing a commitment to equality and diversity.’ The case also appeared in the law reports, another element that the Selection Panel looks out for.
Rory Mullan QC from Old Square Tax Chambers also used a pro bono case that raised a lot of difficult legal issues: Butt v HMRC. Mr Mullan represented a taxpayer who had been subjected to a huge VAT penalty in circumstances where the law was far from clear, raising an issue of whether the penalty should be applied at all. He initially acted (with another colleague from chambers) pro bono before the First-tier Tribunal before representing Mr Butt at the Upper Tribunal and then before the Court of Appeal.
As Sir Alex pointed out, it can be difficult for some barristers with more desk-based practices to present cases in court and cut their teeth on advocacy before judges. This can also apply to barristers doing commercial work, who are stuck in the Catch-22 of not being able to lead cases until they become a QC but who cannot reach QC without the experience of being unled on their feet in court.
In Ms Abram’s view, there is no reason why a commercial barrister shouldn’t be able to find pro bono cases to take on, even if outside their usual area of practice. She says that she’s a strong believer that commercial barristers don’t just need to do commercial law. ‘The job of a barrister is all about educating yourself in a new bit of the of law, becoming an expert in it and doing a case. We don’t say no to cases just because we don’t know the answer to them. It is inherent in the job that we find out what the answer is. There is no reason why commercial barristers shouldn’t do cases that raise employment or social security cases.’
In addition, anyone whose practice revolves around regulation can also find it presents unexpected problems when applying for QC. Clinical negligence specialist, Andrew Kennedy QC from 1 Crown Office Row, used a case he took on pro bono as one of his 12 listed cases. He explains that it ‘had the potential to provide me with a case before a High Court judge. Regulatory work is largely before professional tribunals and in the past (there has been a chance with legally qualified chairs) it has not been possible to name cases on the silk application form.’
There are many ways to include pro bono in your career at any stage. Become an Advocate reviewer or mentor, or partner with one of the many other brilliant charities in need to people to represent their clients. If pushed for time, spend a couple of days a year volunteering for the Employment Litigant in Person Scheme or CLIPS, both of which have limited time commitments.
In the opinion of Mr de Mestre, ‘It’s never too late to start volunteering. I see first-hand from the testimony of litigants in person, Judges and volunteers how pro bono assistance is not just critical to the operation of the legal system, but is professionally and personally rewarding.’ It may also just get you a lovely new gown.
If you are interested in becoming an Advocate reviewer or mentor, please contact Bryony at bwells@weareadvocate.org.uk
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