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12 November 2013
Barrister takes Bar Council to court over complaints-handling
HM Revenue & Customs costs case threatens direct access
Profession awaits new QC list
Chambers make flurry of appointments
Barrister v General Council of the Bar
It is not very often that a barrister sues the Bar Council. It is even rarer for the council to find itself the object of a police investigation. Yet thanks to 1 Essex Court barrister Paul Diamond, the Metropolitan Police and the courts are examining the council's process when pursuing a complaint against an individual practitioner.
The case highlights the restrictions on how much barristers can say in the press about current cases - a hot topic given the way that the claimants in both BCCI and Equitable Life publicised their cases in the media.
On 21 November, The Lawyer revealed that Diamond had complained to the police about the way the Bar Council had tried to prosecute him for making a media comment about an ongoing case. Diamond, who specialises in religious law, had penned an article for an evangelical newsletter which he believed was for private circulation. The article was, however, published online, making it publicly available in the eyes of the Bar Council. A complaint was duly made and a prosecution pursued.
Although Mr Justice Hart wanted to strike the case out, Diamond is determined that justice is done and seen to be done. Unusually for a successful defendant, he insisted that the case continue to the High Court and in the meantime launched his own case against Bar Council president Guy Mansfield QC and other officers.
The case will throw light on the way complaints are handled, in an era where the Bar Council and the Law Society are preparing to hand over responsibility for this ever-controversial part of regulation to the new Office for Legal Complaints.
A threat to direct access
Since its establishment several years ago, the Bar Council's direct access scheme has become more and more popular for chambers and clients alike. By signing up as a licensee under the licensed access scheme, clients, whether they be large corporations or public bodies, can bypass the cost of a solicitor and talk straight to a barrister.
The scheme does not threaten solicitors. Barristers tend to be instructed directly only for opinions or for smaller, specialist cases, where the bulk of a law firm is not needed. For most litigation heading for court, a client will still turn to their preferred solicitor first. In the event that counsel is the first person instructed, solicitors will always be brought in when the case gets too large for barristers alone to handle.
Despite its success, the scheme was threatened last month with HM Revenue & Customs' (HMRC) appeal over the costs awarded to tennis star Andre Agassi's accountant Tenon. Tenon instructed counsel directly in Agassi's case over income tax payable on sponsorship earnings and won, meaning that it claimed its own costs as well as those of Gray's Inn Tax Chambers barrister Patrick Way.
HMRC said that because Tenon was not a solicitors' firm, it was not liable for its costs. The appeal was in itself a worrying development, and became more so with the Law Society's support of HMRC's case. Tenon and the Bar Council argued that were HMRC to succeed, it would discourage other clients from using the licensed access scheme. Judgment is still awaited; for the sake of healthy competition between the bar and solicitors, it is essential that HMRC does not win its case.
New QC system gets off the ground
In November, the new QC selection process moved on to its next stage. The appointments secretariat released statistics showing the profiles of the 443 applicants under the new system.
Although the statistics were trumpeted as showing an increase in the number of female applicants, in truth they demonstrated that little progress had been made in increasing the proportion of potential QCs who are female, solicitors or from an ethnic minority background.
Meanwhile, hundreds of referees waited to hear whether or not they would be contacted. Those that have heard are groaning under the weight of the administration required just to support a candidate. The written reference form runs to 19 pages, while those who are being interviewed in person expect to give at least an hour of their time.
The questions themselves are skewed towards the PC rather than the QC. Is it really relevant that a potential silk appreciates cultural and diversity issues?
The true test will, of course, come next year, when the list of new silks is announced. The quality of the QCs will demonstrate just how good the new system really is.
Knocking on the door
Recruitment at the bar is pretty busy at the moment. November saw three sets pick up new silks, either as full members or door tenants.
Landmark Chambers pulled off a coup when it bagged Two Field Court's head of chambers Ashley Underwood QC in a boost to its public law business. Underwood will move to Landmark's shiny new Fleet Street chambers in February 2006, leaving just one silk behind - employment specialist Lucy Theis QC. Since the announcement of Underwood's departure, Theis has been named as the set's new head of chambers after an initial period of confusion over Underwood's successor.
Door tenants were the order of the day at both Brick Court Chambers and Exchange Chambers. Brick Court picked up top South African silk Jeremy Gauntlett SC at the end of the month. North-West set Exchange added Littleton Chambers' Philip Bartle QC and 2 Bedford Row junior Keith Mitchell, with both barristers planning to develop their practices in the North.
One Essex Court followed the example of Essex Court Chambers by bringing in a retired law lord as an arbitrator. Lord Slynn of Hadley joins a distinguished team of arbitrators and mediators, and becomes the third retired judge in two months to announce a move to chambers after Essex Court picked up Lord Steyn and Blackstone Chambers took on Lord Woolf.
The Bar Council was also hiring, choosing former General Medical Council Standards Committee chair Ruth Evans as the first chair of the bar's Standards Board. The board will begin its work in January, and will eventually consist of 15 members including seven lay members. The Bar Council, like the Law Society, is splitting its functions in the wake of the Clementi review and in advance of the implementation of the Government's white paper on legal services.
Meanwhile Monckton Chambers is losing - on a temporary basis - its joint head of chambers, Kenneth Parker QC. Parker has been appointed as the new Public Law Commissioner, joining four other law commissioners who together recommend reform to the law of England and Wales. The appointment sees Parker leave Monckton for five years. Paul Lasok QC will shoulder the head of chambers burden alone.