Fear of competition bars rights of audience

Susan Ward says the Bar's requirements for the lifting of rights of audience restrictions on employed barristers means these rights are being given with one hand and taken with the other. Susan Ward is chairman of Bacfi and general counsel to the banking body, APACS.

Of course I am pleased to see a very small lifting of the restrictions placed on employed barristers exercising rights of audience.

However, it seems to me that the Bar Council has decided to give us these additional rights while making it extremely difficult to meet the conditions attached to them.

Bacfi, the association which represents the interests of employed barristers in the private sector, has long campaigned for a lifting of all restrictions on employed barristers.

Their employers currently face the ludicrous situation of having to instruct external solicitors to brief external barristers in order to handle any litigation in the higher courts. This results in an unnecessary duplication of costs, which is inevitably passed on to the consumer.

With the new rules we should, in theory, be allowed to appear in the higher courts in certain limited situations for example, interlocutory hearings. We will still, however, be prevented from appearing as a sole counsel on any occasion, which constitutes the hearing to deal with the merits of the case.

What troubles Bacfi is the long list of conditions and requirements the hoops and hurdles which we have to tackle to be granted these very limited extended rights in the first place.

It is worthy of note in this context that a barrister freshly out of his pupillage who goes into independent practice automatically has full rights of audience in any court.

An employed barrister with the same qualification and training will, on the other hand, have to wait for three years to get these limited higher court rights of audience.

Not only that, but he will have to show to the Bar Council that he has had a minimum of 20 to 55 appearances in court each year for the past two years and that he has been appearing in matters of "substance and complexity" rather than simple, short, routine matters.

If he wants rights of audience in civil cases, he will also have to prove to the Bar Council that he has experience of a range of proceedings and experience of a range of areas of the law, which may include matrimonial, housing, consumer, personal injury and other tort law.

His Crown Prosecution Service counterpart will have to show similar experience in the field of criminal law. However, his fellow barrister in independent practice has to satisfy none of these requirements.

To make matters worse, employed barristers are also to be subject to so-called "structural requirements".

They will have to show that they work in a legal department headed by a lawyer and which has at least three lawyers. There are many more similarly onerous requirements.

Employed barristers have been able to exercise rights of audience in lower courts and tribunals for some time.

I am unaware of any evidence to show that the public interest in the proper and effective administration of justice has been in any way harmed or prejudiced by the advocacy activities of employed barristers in these tribunals.

On the contrary, I and my colleagues at Bacfi think that employed barristers have made an important contribution to the work of these courts and tribunals. Why, therefore, should unduly harsh requirements be placed upon employed barristers seeking to do advocacy work in the higher courts?

Clearly, many barristers in independent practice regard the grant of any further rights of audience to employed barristers as a threat to their livelihoods. At Bacfi we feel that their perception is wrong.

There will always be a market among the members of the business community for the services that the independent Bar can provide.

But, for short cases and interlocutory matters, there is clearly a cost benefit for employers in using the services of an in-house barrister.

For long hearings and complicated matters it is likely to be in the employer's interests to use the services of specialists at the independent Bar.

Therefore, the independent Bar will no doubt continue to be asked to provide a valuable and useful service in this regard to the business community.

But the business community would like the opportunity to choose how its legal services are delivered. The choice currently is unreasonably restricted.

This proposed increase in rights of audience is most welcome in principle.

However, I fear that the current requirements for the grant of such rights are of such a nature that the rights are, in effect, being given with one hand and taken away with the other.