Opportunities ready and waiting
10 July 1997
Toby Kempster says regional barristers are now focusing on service and expertise. Toby Kempster is a barrister at Old Square Chambers, based in the Bristol annexe.
Statistics disclosed by Labour Market Trends for the most recent year surveyed (to 31 March 1995), show that approximately 70,000 complaints were presented to industrial tribunals and just under 1,000 appeals were taken to employment appeal tribunals. But with the coming into force of the Disability Discrimination Act 1995 on 2 December 1996, the substantial amount of litigation already pursued through the tribunals is likely to increase.
While it is important to bear in mind that most complaints pursued to an industrial tribunal do not involve representation by lawyers, and that applicants are hard pressed to afford the representation they want in the absence of union or insurance backing, the opportunities for lawyers in this area are obvious.
It is not surprising, therefore, that the small number of London chambers which have previously enjoyed something of a monopoly in employment law, have more recently been augmented by a number of other sets and individuals with employment expertise. However, the growing demand for employment lawyers and/or advocates has been met mainly by the larger firms of solicitors which have set up specialist employment departments dealing not only with advisory work but also with advocacy.
Barristers pursuing an employment practice outside London have for some time realised that being an effective advocate is not enough in itself and that a high level of expertise must also be acquired and demonstrated.
This has led to the development of special interest groups in the large regional sets, so several barristers can develop the necessary expertise and experience while the chambers itself can offer solicitors a service. Another response has been to set up a regional annexe, as Old Square has done. Both avenues have been effective in increasing the profile of the regional employment bar.
The view of a number of those practising in the regions, and particularly in Bristol, is that the competition in tribunal work comes from the larger regional solicitors firms rather than from the London Bar.
The Bar, however, is not simply a sounding board for second opinions or an overflow facility, because the complex and longer cases may well lead to counsel being instructed. This may be because the Bar is cost-effective at this level and also because some of the solicitors' in-house departments do not yet have sufficient experience.
On the other hand, and in addition to the steady flow of work that comes from the small firms which look to the Bar for appropriate expertise, there is an increasing amount of work coming directly from insurance companies, unions, local authorities and other similar institutions. In this respect, the Bar, with its lower overheads, particularly outside London, is able to provide competitive rates.
The other important area of growth comes from the setting up of Mercantile Courts in Manchester, Birmingham, Bristol and Leeds. Mercantile Courts, and perhaps more importantly the appointed mercantile judges, have created a greater degree of confidence among solicitors, who are becoming increasingly willing to start their commercial litigation locally. In Manchester, Birmingham and Bristol, the amount of injunctive work generated by restrictive covenants is increasing.
Of course, the fact that a solicitor issues locally does not necessarily mean that the local Bar will be instructed, but in an area of law where matters can move swiftly, there are obvious advantages in doing so.
The sets best placed to pick up this work are those with established senior practitioners or silks, such as St John's Street in Manchester where John Hand QC has led juniors in his set in a number of important cases (for example, Provident Financial Group v Hayward 1989 3 All ER).
It should not be assumed that the regional Bar has become devoid of commercial/injunctive work. Birmingham, for example, has long made good use of its chancery district registry.
Solicitors are reluctant to switch from chambers where they get and continue to receive a good service. But with a number of the country's leading firms now based in the regions, the London bias on specialist work is not as strong as it was. Indeed, some solicitors are enthusiastic about using local barristers. But the point was recently made to me that that clients will often have a say in the manner in which they are to be represented. They, after all, are paying for the service.
Even if the solicitor they instruct provides an advocacy service, clients may expect to travel to London and climb three flights of steps to see their barrister in the surroundings of the Temple rather than walking 10 minutes up the road to another lawyer's office.