The talk of the town

Desmond Browne QC has plenty to say about Fleet Street’s proposal to split the libel bar into claimant and defendant specialists.

A successful interview is a sparkling conversation managed by the journalist. With Desmond Browne QC, I have failed. The joint head of media set 5 Raymond Buildings is sparkling, and an excellent orator, but he is so good at being interviewed that I can’t get a word in.

We meet so Browne can voice his opposition to proposals by a group of Fleet Street lawyers to prevent barristers they instruct from acting against them. For the first half hour of the interview, he weaves through all the arguments against the idea like Jacqueline du Pré performing her finest Elgar. He anticipates my every possible question and answers himself convincingly, while I counterpoint the flow of his voice with the odd attempt at forming a sentence. “But…. “wha’?….” I utter at irregular intervals, feeling like a small child who’s trying to join in with a recital given by one of the world’s finest soloists.

Last month, The Lawyer revealed that a group of newspaper lawyers, led by Associated Newspapers’ Harvey Kass, proposed that barristers who act for them regularly should not act against them for a number of months after a case. Some went so far as to suggest that the libel bar should split along claimant/defendant lines.

Browne, his joint head of chambers Adrienne Page QC and 1 Brick Court’s head of chambers Richard Rampton QC, sent a strongly worded letter to The Lawyer in response. They argue that Fleet Street’s proposals would disable good barristers from acting against newspapers and force them to breach the ‘cab rank’ principle enshrined in the Bar Council Code of Conduct.

Browne, a senior and universally admired libel silk, has built up a superb claimant and defendant practice. On the day we meet he was off to the High Court to injuct The Guardian to stop it naming the former royal servant at the centre of this week’s story about newspapers not being able to run stories (the injunction was overturned at a subsequent hearing). He has just won £30,000 libel damages from The Daily Mail for Dame Diana Rigg. He is also representing Mirror Group Newspapers on the privacy case brought by supermodel Naomi Campbell. He is at the top of his game, so it is unlikely any newspaper would stop instructing him for having the temerity to speak out.

“So,” I say, sitting down at his large wooden desk, “why did you write us that letter?” And the brilliant soliloquy begins.

First, he says that Fleet Street has no need to propose a set of rules about who can act for and against them. “They [in-house lawyers] can vote with their feet. Sometimes they do this by withdrawing current instructions if someone then starts acting against them. They’re perfectly entitled to do that. I believe the Fleet Street lawyers want new rules as they’re motivated by the system in the US where lawyers act for either claimants or defendants. My impression is that this makes legal services in the US inaccessible to claimants. The main experts, who are chosen for their experience, tend to act for defendants, but the claimants find themselves going to people who aren’t experts and don’t have the same experience as the defendant lawyers,” he says.

This is a nice argument, as Browne is talking about access to justice rather than complaining that the sort of split libel bar some newspapers want will mean less work for those members of his chambers that Fleet Street doesn’t want to instruct on a rolling basis.

He knows that question is coming, so within a nanosecond he’s there with the answer. “It really is about the principle rather than about the money. We must protect the cab rank principle,” he says.

But the cab rank principle does not always work in practice. Many clerks – generally with the support of their barristers – have been known to pull tricks, such as saying that a top QC is available but his rates have gone up to £1,200 an hour, or that he has a previous commitment, just to escape a duff instruction. Browne knows that I’m going to point this out and swoops down with his response before I can finish the question.

“Most people do believe in the cab rank principle and its operation. It’s a principle that’s so important it’s not one to be bent at the edges. Having said that, one is aware that there have been cases where suspicions have arisen that someone has attempted to decline instructions by saying they are too busy, or will charge too large a fee. If I found that going on in these chambers then I’d instantly step in and stop it. It’s rare, and I do think people do everything that can be expected to maintain the principle,” he says.

By this point I’m performing the role of the stenograph, so I continue taking notes and turn my attention to Browne’s body language. Something strange is going on here. For about two sentences, he turns his head to the left and looks out of his window. For the next two he turns back and flashes me a twinkly-eyed grin, then it’s back to the window to repeat the cycle. There doesn’t seem to be anything going on outside. Perhaps I have food on my nose and he is turning to the window to stop himself from laughing. But his smile is very friendly, so I guess he has got into this rhythmic pattern to help the flow of his argument.

And he’s still talking.

“The other main point the newspapers are making is that we shouldn’t act against them after acting for them because we have a psychological profile of their legal teams. Yes, we do get a psychological profile. We also form a view as to which in-house lawyers are likely to fight hard on particular sorts of cases, but we get that information from acting against them as much as acting for them,” he says.

He’s convincing me, but now I’m so intrigued by his smooth delivery I decide to ask him an embarrassing question to see how he reacts. Dame Diana Rigg is to Browne’s generation the equivalent of Kylie or J-Lo for today’s. According to a good source, he took a great shine to her during The Mail on Sunday case, so did he develop a full blown schoolboy crush on the former Avengers star? He doesn’t blush or get cross, just hits back with the perfect answer. Rigg is an incredibly intelligent woman, he says, and had the case proceeded to trial she would have been excellent in the witness box.

There is no catching this man out. Browne is quite simply a formidable interviewee, which is no doubt a reflection on his formidable advocacy skills.

When the interview ends we discuss why I have taken shorthand notes instead of bringing a tape recorder. I tell him that being recorded often makes interview subjects clam up, but Browne reveals he quite likes talking into a tape. “I prefer it when there is a tape recorder. You have a permanent record of the interview, and at any rate, I always know what I’m going to say.” Yes, Desmond, you do. I’m off to brush up on my interviewing skills, and if I could afford him, I’d be asking Desmond Browne for lessons.

Desmond Browne QC
5 Raymond Buildings