The silk road toll

Taking silk is a daunting experience and one not helped by the complexity, time and significant costs associated with the application process, argues Michael Edenborough QC

I took silk in 2010, having been called in 1992. That was four years quicker than the average that year. I consider myself rather lucky to have succeeded at my first attempt and am very relieved that I do not have to endure the process again.

The form comprised 62 pages, required around 15,000 words to complete, involved a detailed consideration of 12 cases “of substance, complexity, or particular difficulty or sensitivity”, and named 24 assessors (of whom about a third are contacted).

High price to pay

The cost is substantial. For the 2009-10 round the application fee was £2,350 (non-refundable) with a success fee of £3,500 plus an additional charge of £215 for the Letters Patent.

That does not take into account lost earnings due to the fact that it takes between two and three weeks to complete the form and arrange the assessors. In addition, it is common to engage the services of consultants to advise on the completion of the application and prepare for theinterview, if one passes the paper filter. These cost around £1,000 each.

If successful there are non-trivial costs associated with the ceremony, such as the hire or purchase of the dress clothes, shoes and long-bottomed wig, hire of the car and various incidentals such as a celebratory party. The cost of a party is, obviously, variable and to some extent controllable. However, ­normally one wants to thank generously all those who have made it possible.

Then there are further costs, such as the new silk gown and jacket (around £2,000 each) and the increased cost of Bar Council membership.
Of course, there is an expectation that these costs will be recouped by being able to charge more, and also the fact that taking silk commonly gives one the option to ­prolong one’s working life if desired.

I would advise anyone considering ­applying for silk to start preparing several years in advance. The core requirement is to have around 12 good cases that can be used to showcase your skills in the best light. It is important to select your cases with care so that, between them, they can be used to illustrate all the required competencies.

I rejected several high-profile cases because they merely duplicated skills that other cases had already illustrated. Instead I used lesser cases that could be used to illustrate skills that were not otherwise ­covered.

The guidelines contained a reasonably detailed checklist of the sort of examples that may be used to demonstrate that a ­particular competency had been satisfied. I (rather boringly) systematically went through that list and chose examples that matched most of them.

Similarly, with your choice of assessors, bear in mind that one has limited control over who will be asked to give references. The tick-box assessment favours those who can give clear, factual examples, including the number of reported cases in the past two years.

Could do better

In my view there are significant flaws in the current system. First, the fees are very high, due no doubt to the vast machinery that the system has to fund. However, it is foreseeable that this will deter applicants from those sectors of the bar who earn significantly less than the chancery/commercial parts.

Second, the form is too long and requires the discussion of too many cases and the naming of too many assessors. In part the application becomes a test of logistical skills. Third, the responses from the QC Appointments secretariat to queries about the form are sometimes rather Delphic in nature.

Fourth, the absence of a fixed timetable ­creates unnecessary stress for applicants. Fifth, there are concerns that the system does not recognise properly the merits of chancery practitioners, in particular those who practise offshore. Finally, the quality of feedback could be improved to assist more clearly any future application.

Is the new system better than the old one, in which one merely had to put one’s name in the hat (and, latterly, give an ­indication of income in each of the past three years)? We all know failings under both systems. There are always people who we think deserve to be awarded silk, but are not. Such discrepancies now have a ­different flavour, but they are still present.

Personally, I probably benefited from the new system because it relies less on appearing before the right judges and more on demonstrating certain competencies. As such it is more objective, which is laudable. However, the cost and effort to achieve that aim is disproportionately high. Accordingly, while retaining its objectivity, the system should be made simpler and cheaper.

Michael Edenborough QC is a barrister at Serle Court