Regional bar: Commerce raiders
10 February 2014 | By Hannah Gannagé-Stewart
2 December 2013
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19 February 2014
The regions might stand shoulder-to-shoulder with London on criminal justice issues but there is everything to fight for when it comes to commercial work
The regional bar’s most pressing preoccupation at the moment is the fate of the criminal justice system. The combination of already low pay for criminal advocates, further cuts to legal aid and the persistent spectre of the Quality Assurance Scheme for Advocates (QASA) means that, on this at least, London and the regions are united.
It is in the regional sets where the pressure on low-value work is most keenly felt. Family and criminal law has historically been the bread and butter of provincial barristers, with little commercial work available outside London.
It would be unfair to suggest that the Ministry of Justice’s (MoJ) latest drive to transform legal aid is the only push factor in the development of an increasingly specialised and commercial regional bar, but if ever there was a time for diversification, it is now.
The deadline to sign up to QASA may have been extended despite the Criminal Bar Association failing in its bid to bring a judicial review of the scheme’s lawfulness, but the regional circuits are still first in line to sign up. London’s South-Eastern circuit is not due to begin registering for another three months.
The registration deadline for the Midland and Western circuits, which are the first to be required to register for the scheme, has been extended until May, when the South-Eastern circuit will be expected to register, followed by the Northern, North-Eastern and Wales and Chester regions.
Despite months of resistance by barristers across the country, a High Court judgment in January concluded that the scheme was lawful and the Legal Services Board is expected to press ahead with its plans for mandatory evaluation of the performance of publicly funded advocates.
Midland circuit leader Mark Wall QC describes the relationship between the profession and the MoJ as “a stand-off”, with many barristers refusing to work at the new rates.
Wall says if barristers continue to refuse criminal work “it would mean a loss of income to the bar, but you have to weigh up when it’s time to make a stand because the bar has been destroyed by increments over the past five years”.
It is the same story on every circuit. Pupil barristers are just not coming through as criminal practitioners.
“It’s not regarded as secure or rewarding enough,” says North-Eastern circuit leader John Elvidge QC.
There is a palpable loss of faith in the MoJ’s commitment to the criminal justice system among barristers. It is not just that fees are unsustainably low or that successive attempts to reform the system appear to have missed the fundamentals of criminal jurisprudence, it is also that chambers have been expected to pick up the slack from other agencies for too long.
According to one leading regional QC, there are constant failings on the part of the Crown Prosecution Service (CPS). In the interests of fairness he is careful to point out that the CPS “has had to deal with its own cuts and issues”, but increasingly, work it should handle has had to be picked up by chambers for cases to progress.
Goodwill, he says, is all but extinguished at the bar. Criminal barristers have always been resilient, but most are no longer willing to make the personal sacrifice necessary to do their jobs properly.
There is no silver lining to what is happening at the criminal bar, but it has forced chambers to look at alternatives and take a more aggressive approach to reclaiming commercial work from the London courts.
With the rise of mercantile and chancery courts in regional trial centres comes a greater capacity for sets in areas such as Manchester, Leeds and Birmingham to wrest back locally generated commercial work from London.
Meanwhile, as regional cities become better connected to London and attract larger businesses, solicitors are coming round to the benefits of regional work being dealt with locally.
As tough as it has been to get to this point at the regional bar, there is some light at the end of the tunnel. The publication of Lord Justice Briggs’ Chancery Modernisation Review at the end of last year gave much-needed backing to the argument that work generated in the regions should stay with the regional bar.
In it, Briggs LJ said he was in “no doubt that the maximum use should be made of all the regional trial centres”, highlighting that most have short waiting times and the capacity to handle more work than they do.
He went on to recommend that no chancery case should be regarded as too big to be tried in a regional trial centre. As is already the case in Manchester, he said, issues that call for trial by a full-time High Court judge should be dealt with by the chancery supervising judge. Failing that, a serving or retired chancery judge from London should be called out to conduct the trial in the region.
Further to this, Briggs LJ recommended that even cases issued in London should be considered at the earliest possible stage for their suitability to be transferred to a regional court.
Aware of the propensity for firms to refer work to London to demand higher fees, he warned that action should be taken to prevent the development of incentives for regionally based parties to unnecessarily refer work to London.
“I’m confident there will be more commercial work in the regions in future – that’s what barristers on this circuit will be aiming to achieve and there’s a good chance of them doing so,” says Elvidge.
He says the infrastructure and professional prowess in the regions means that there are few issues that cannot be dealt with locally and the only thing preventing more work coming through the regional bar is the reticence of some solicitors to instruct regional sets.
“Some large players have a big regional base and they ought to be looking at the regional bar to supply those legal requirements,” Elvidge continues. “It’s a question of educating the big firms that they can use the local bar – it’s a process.”
Chancery House Chambers commercial barrister Greg Pipe admits there is a move towards some chambers trying to do civil and commercial work in mixed
sets, which he believes succeeds only in forcing down fees.
“It means there’s a gap between those that can do commercial and those that are dabbling in it with civil,” he says.
At Chancery House, as the name suggests, the focus is on chancery, commercial dispute resolution and construction and, following its upcoming merger with Birmingham’s St Phillips, the set will also have a bulked-up insolvency practice.
Pipe is adamant that truly specialist regional chambers will be the ones to gain traction at the emerging regional chancery bar. He says recruitment into Chancery House is approached from a specialist point of view.
“You end up having a small number of people with high-value practices and you try to build up that number by bringing specialists in, irrespective of whether they were originally from the bar or not,” he says.
For example, he says it is far more common now to see lifestyle changers coming out of London and into the regional bar, meaning London-grown expertise is being brought back into the regions.
But if firms still prefer to use London counsel, how do ambitious commercial sets find a way in? Asked whether direct access is a way round the problem, Pipe is sceptical.
“You expect a service to in-house counsel and to large firms of accountants and other professionals, but the more specialist a set is, the less interest you’d expect in direct access,” he says.
Western circuit leader Andrew Langdon QC also believes that geographic boundaries have become markedly less apparent when it comes to the commercial, insolvency and personal injury bar in Bristol over the past few years, and concurs with Pipe on specialisation.
“We’ve become much more specialised, so you have chambers with a range of teams but some have cut out whole areas, such as crime and family,” he says, adding that it is the speed of change that has caused anxiety rather than change itself.