Born to be a barrister

Lord Brennan talks to Matheu Swallow about being back in full-time practice and experiencing his reforms first hand.

Lord Brennan is already halfway out of the door as he draws the interview abruptly to a close. "I've got to go, it's two o'clock. Otherwise I'll be shot," he says. Brennan is in a mad dash to return to court, where he is handling a case involving a road traffic accident and is having a tough time persuading the judge of the merits of his client's case.

This is typical Brennan, always in a hurry, and never more so than in his year as chairman of the Bar Council.

"1999 was a momentous year for change away from the past and into a very different future and I make no apologies for having determined to persuade, cajole and forcefully bring the bar into a new world," says Brennan.

No one was safe from his reforming zeal, not the Government, certainly not personal injury practitioners and not even the commercial bar, which let's face it, has no need of Bar Council initiatives such as BarMark, does it?

"I don't agree with you about the reaction of commercial chambers last year. I found to a considerable extent that while commercial chambers are very proud of their reputations they are very sensitive of market forces and led by a chairman who was exposing the bar ruthlessly to market forces they didn't feel in any superior or different position to others," he says.

Even his own chambers, 39 Essex Street, experienced some turbulence as he attempted to yank the profession into the 21st century.

"There are bound to be such disturbances given the changes that we're presently experiencing. But you've probably found that we've had more people coming in than going out, and we're still proposing to extend. I think we are very fortunate because we have such a broad range of specialist groups, public law, common law, PI, insurance, construction, commercial law, entertainment law – it's a very wide base and I think we will benefit from that.

But, when you have chambers with this disparity of interests and numbers there are bound to be times when things aren't going absolutely perfectly."

Now back in full-time practice, predominantly as a PI/clinical negligence practitioner, Brennan is experiencing first-hand the effect of his reforms. So are they proving successful?

Externally, Brennan says the bar developed a successful working relationship with the Government that allowed it to influence the content of the Access to Justice Bill.

"Things like putting in objectives, forbidding conditional fee agreements (CFAs) for family work, clarifying that the extended rights of audience was only to a reasonable extent and not to an unreasonable extent whereby it produced a world of virgin plc lawyers. In addition, the very welcome statutory requirement that employed lawyers should be treated as having the same duties as all lawyers, to court and to justice, rather than that duty being subjected to any contractual duty to his employer."

Brennan also outlines the advances being made, after extreme pressure – "and I mean extreme pressure" – towards establishing a standardised system of fees in criminal work and a new scheme for family work.

In order to handle such far-reaching reforms, the bar's internal structures and the administrative function of chambers, in particular PI and clinical negligence sets, had to change. Brennan cites BarMark and BarDirect as the two main internal initiatives.

"I hope the bar survived the year feeling bloodied but unbowed in its basic strong usefulness to society. We must never let our practices and how we run in chambers dominate that," he says.

However, despite these successes Brennan is worried about the consequential impact of some of the legislative reforms contained in the Access to Justice Act.

"I'm very concerned about whether CFAs will succeed in the way it is hoped they will," he says.

His concerns are threefold. His first worry is the power that CFAs will divest in the insurer.

"Insurers are in business to cut risk and make money. It seems to me that we are now in unknown territory in determining how these competing insurers interests on each side will influence the way PI work is done.

"My second concern is that the introduction of CFAs, while arguably in principle meeting the unmet needs of Middle England, may result, because of their emphasis on cost effectiveness and financial advantage, in cases being settled too early, too low or not being properly investigated and, where you've got a difficult case, simply not being taken up at all."

Finally, in those areas of PI that have been preserved for legal aid funding, such as group actions and very high cost cases, Brennan is worried about how the new regime will work.

As a PI practitioner, Brennan welcomes the new Civil Procedure Rules, particularly the system for pre-action protocols, and expects to see the right cases being settled at an early stage and those cases that do fight being fought more quickly and efficiently.

But Brennan refuses to be drawn on the impact these reforms are likely to have on the profession in terms of earnings and the amount of work available.

What he does accept is that the bar, particularly as a result of CFAs, has had to look closely at its internal structures and its ability to cope with new methods of funding and increased risk exposure.

"The particular consequence for PI chambers is really a short-term problem – cash flow. The bar will be expected to take on cases that will not produce a return for several years perhaps. This is a problem that, in my view, has been exacerbated by the new rule which limits the recovery of the uplift solely to the risk element and not to factors such as delay in payment and overhead costs in managing a CFA practice.

"This, it seems to me, presents a contradiction in the Government's policy to require the bar to be businesslike. When it is businesslike, the Government says 'but you can't recover those business costs only a limited portion'. I find that a contradiction which would benefit from a good explanation."

However, despite the well documented pressures facing the bar, Brennan is confident that structurally the bar will survive on the unusual grounds of a change to the tax regime.

"Because we are now required to pay tax on fees earned rather than fees paid. There is an imperative for barristers and chambers to be financially and administratively efficient. The old days of letting fees hang fire to keep clients happy is going to produce an absurd situation where barristers will be bankrolling defunct solicitors and clients and yet paying tax on their unpaid debt.

"The new regime is coming in the new tax year and it will definitely have a quick and major impact."

Should his confidence in the vast majority of reform prove to be misplaced, Brennan, with his recent elevation to peerage, is in an ideal position to challenge any cracks that appear.

He says, in reference to the PI and clinical negligence field, there are already certain areas earmarked for attack.

The first is the manner in which claimants, particularly in cases brought against the NHS, receive their compensation.

"I couldn't see any justification for simply giving the parties a lump sum," he says, arguing that annual or periodic payments would be better suited both to the needs of the claimant and to ease the financial burden on the NHS.

Brennan also expects to be giving support to radical reform of the criminal justice system but otherwise is simply waiting to see the Government's legislative programme for the next 12 months.

One area where he does not want to see radical reform is the rules relating to how barristers work together. Partnership, he says, is simply not an option.

"I think whatever the advocates have been saying in your journal there is a plain, straightforward legal principle that partners cannot litigate against themselves. I think the arrangements for teams, cooperation, sharing of administrative cost – not profit, is as effective a way of maintaining a public service as partnership."

As for Brennan himself, after a busy year as chairman, he is enjoying his return to full-time practice. He is intent on continuing his work in the PI/clinical negligence field and hopes to extend his environmental law practice.

"It [a sabbatical] does act as a refresher, it revitalises you and to an extent it makes you more objective and economic in your analysis when you come back to practice. I think I was born to be a barrister."