Civil shepherd

Anyone entering Ronald Thwaites QC’s office at Ely Place Chambers would instantly know what he is working on.

Lining the walls are, at a conservative guess, at least 50 lever-arch files labelled ‘Climbie’. Thwaites is representing the police in the inquiry following the horrific death of eight-year-old Victoria Climbie. He also represented the shamed disc jockey Jonathan King in his tawdry trial for sex abuse, but understandably doesn’t mention that one.

Arranged over the files is a sizeable collection of old engravings and prints of judges and court scenes. Thwaites says that he used to display them around the chambers until one of them was pinched – now the communal walls are decorated with cheap prints.

What has spurred this interview is Thwaites’s role in the recent Private Eye libel case brought by accountant John Stuart Condliffe concerning an article back in 1992 alleging that he overcharged clients. Thwaites was instructed by Davenport Lyons to represent the magazine.

Two things stand out about the action, which ended with Condliffe dropping the case and handing over £100,000 towards Private Eye‘s costs. First, that the satirical magazine won, making it the first libel trial in which it has emerged victorious in 15 years; second, that Peter Carter-Ruck and Partners, representing Condliffe, agreed to fight the court battle on a conditional fee agreement (CFA).

Given the fee uplift allowed under such agreements, and the fact that Condliffe did not have insurance to cover his own legal fees, Private Eye was facing a fairly dire outcome whether it won or lost: if it had lost, then the estimated £1.75m in legal fees could have closed down the publication; if it had won, then Condliffe would be declared bankrupt and so the magazine would have been left to pay its own legal fees anyway. It was fortunate for the magazine that Condliffe dropped the action.

Thwaites has a lot to say about CFAs, none of it good. “CFAs are one of those American imports that we could have done without,” he muses, arguing that the whole system will turn lawyers into litigants and may affect their objectivity. “If lawyers cannot be objective, then many cases will end in tears. It’s very unattractive that the outcome of litigation will have an adverse effect on the ability of lawyers to pay their mortgages, service their cars etc, and that ought to be an anathema to all of us. If the situation gets out of control and people find that their whole livelihood depends on CFAs, that’s bad news.”

CFAs can work in the US, argues Thwaites, because the system there uses jury trials much more than the English system, for example in personal injury cases. Juries, as defamation defendants used to be only too aware, are much freer with defendants’ money than judges, and so mega-bucks payouts are quite common. Therefore, using contingency fee agreements, which are not yet permitted here, lawyers can take around 30 per cent of any winnings, and so one massive payout will enable a lawyer to keep their office, lifestyle and pension fund going. “They can afford to win one big case and lose several others,” says Thwaites.

But under the present system, the problems will start because of limitations on costs, which Thwaites argues has already started to lead to lawyers taking on cases with no uplift at all.

“Then the problems of ethics start. People might start to find documents and relevant facts being withheld until a later stage in proceedings,” he says. “The whole thing is being done to cut the costs of public funding. At the moment, anything that saves money suddenly becomes acceptable.”

But Thwaites readily admits that he does not have an alternative to the problem of how to pay for actions, particularly libel, without CFAs; although he does imply that he thinks the powers that be should stop concentrating so hard on saving cash.

Another subject that gets Thwaites on his soapbox is the amount of paper now involved in cases. His career history has shown him that cases can be fought with 10 bundles of paper or fewer, rather than 150. “It’s now very common to photocopy every piece of paper in sight,” he says. “You have only to remember that, before photocopiers, someone would look at every piece of paper before asking a secretary to type it out with four carbon copies. Now the lowest administrative person is given the job to photocopy everything. That’s an area that should be looked at again.”

It is unlikely that Thwaites will ever have to submit to a CFA against his will – he is not exactly scrabbling around for work. So what does he think keeps the clients coming?

“In this profession, you’re either run off your feet or no one wants you; it’s all or nothing,” says Thwaites, who has rarely had time to draw breath since being called to the bar more than 30 years ago. Now he consciously limits his caseload to between 6 and 10 a year, partially to give him time to prepare properly and partially to appease his wife.

As to what his appeal is, Thwaites claims to have no idea. “No one gives me easy cases, they think I’ll probably ruin them,” he says. “When solicitors rang up and said, ‘I’ve got a very difficult client’, the clerks would say, ‘I’ve got a very difficult barrister’, and put me on the case.”

Possibly, he guesses, his reputation as a tough talker who can bring clients into line has helped. And witnesses too – Thwaites says that by the time a barrister gets to court, he has got to know the case better than the people who were involved.

“I know [the witnesses’] lives better than I know my own. That’s the amount of detail you’ve got to get into,” he states. Once in court, Thwaites’s tactic is to fire questions like machine-gun fire; he says that, in the past, judges would threaten to sedate him if he did not slow down.

That was in the days when Thwaites did only criminal work, notching up between 180 and 200 murder cases. But, in 1993, a satisfied solicitor who had used him to represent animal rights activists charged with running a bombing campaign remembered him seven years after that first instruction and thought that he would be the right man to work on a libel case brought against investigative reporter Roger Cook.

Now most of his caseload is civil work, defamation or inquiries involving the police. After so many years of grisly murders, Thwaites says he now prefers working on civil cases for a change, although he remains a strong advocate for bringing up barristers on criminal work.

“It’s my criminal background that makes me in demand for civil work,” he says. “It gives me the best credentials for advocacy. If the bar’s going to survive, then in my opinion it’s for superior advocacy; if we can’t offer that, then the bar will disappear.

“My observation of many civil advocates is that they think cross-examination means repeating to the witness what he has said in a witness statement. Cross-examination is gunning people down and exposing the holes and weaknesses in the statement so as to destroy the other side’s case. Many civil advocates haven’t had the experience which comes with doing criminal work, and that may be the principal reason why people come to me.”

Of course, criminal work also teaches advocates how to play juries, which is something at which Thwaites is notoriously good. And you can see why – at the rate he talks, the 12 good men would not have a chance to get a thought in edgeways.

A chance telephone call during the interview indicates that Thwaites can also play the man of the people card. Talking to a client, he regrets not being able to attend the Chelsea FC game that night. Thwaites may be a Chelsea fan, but he mourns not seeing “a single piece of inspirational football” at the last game he attended, mournfully adding: “We live in hope.”
Ronald Thwaites QC
Ely Place Chambers