It has been a decade since the QC appointments process was overhauled and the kitemark nearly scrapped. Now numbers are back on the rise, with 107 new silks made up last month, a five-year high.
The increase suggests the ‘new’ system, which was revamped in 2006, has finally started to stabilise – although the numbers of barristers applying for the gold standard of advocacy tells a more complicated story.
The number of applications for silk have more than halved over the past 20 years, figures released by the appointments commission revealed in January. Just 237 applications for silk were made in the 2015/16 round, compared to 492 in 1995.
But that number does show a slight increase on the last few years, with applications dropping to a record low in 2012/13 when just 183 applied and 84 were made up.
While interest in taking silk appears to be waning, the success rate of those applying has never been better. Twenty years ago, just 14 per cent of applicants for QC were successful – this year it rocketed to 45 per cent.
The figures arguably make a case for the Labour government’s overhaul of the process in 2004 amid criticism it was riddled with “cronyism”. The revised, more transparent system, overseen by the QC Appointments selection panel, aims to make the lengthy process of applying more rigorous and fair, particularly to female, ethnic minority and solicitor applicants. It also aims to not discriminate on years call or by practice area.
Much still needs to be done to address the balance between men and women at the senior end of the bar, however, with less than a quarter (23.6 per cent) of appointments going to women this year.
This year 48 women applied for silk, with 25 ultimately successful. Female barristers did better in last year’s round when 27 made silk (26 per cent) despite five more women applying this year. The new system does not seem to be encouraging more women to apply – just six more applied this year than in 1995. Indeed, women have historically struggled to get past the 25 per cent mark in any round ever, with last year being only the second time it has happened. Selection panel chair Helen Pitcher said in January the panel remained “concerned that the number of female applicants remains stubbornly low”.
One fact makes the issue strikingly clear. More men have taken silk in the last five years than women have in the history of the process. The first women took silk following reforms in 1949; since then fewer than 370 women have been appointed.
Some 32 advocates from ethnic minority backgrounds applied in the current round (14 per cent of applications), with nine successful. This represents just 8.4 per cent of all new silks this year.
When it comes to experience, this year’s QC list shows a diverse mix of ages and years call. The youngest new silk is just 34 while the oldest is 57, and call dates range from 1980 to 2009. Brick Court Chambers’ Thomas Plewman has been named a QC having been called to the English bar in 2009. He was appointed senior counsel in South Africa in 2008.
Two barristers who were called in 2003, Jonathan Hilliard and Jonathan Davey, both of Wilberforce, are the next most junior to take silk. The most junior female barrister to take silk is Blackstone public law expert Shaheed Fatima, who was called in 2001.
Brick Court Chambers’ Sarah Lee is undoubtedly having a good start to the year, taking silk the same month as being named one of The Lawyer’s Hot 100 2016. The list also includes Serle Court’s Daniel Lightman, who was named among the Hot 100 in 2013.
This year’s round includes three solicitor-advocates who made the grade out of a total nine applications: Quinn Emanuel Urquhart & Sullivan’s arbitration head Stephen Jagusch, Freshfields Bruckhaus Deringer London arbitration head Nigel Rawding, and Gibson Dunn & Crutcher arbitration co-chair Penny Madden. Once again, solicitor-advocates not in the arbitration space did not get a look-in, and the number of applications has barely increased in the 19 years that qualifying solicitors have been eligible to apply, with just five applying in 1996.
As cuts to civil and criminal legal aid continue to affect the profession, the recent list of silks includes a pleasingly high number of practitioners in affected sectors such as family law, children and crime. Commercial law barristers continue to dominate appointments, however, with 20 new silks having commercial at the heart of their practice. Comparatively, 17 new silks practise criminal law and 16 practise public law, often alongside an EU focus.
The Lawyer profiles seven of the newly appointed barristers to discover what it means to take silk in 2016.
Hannah Markham, 36 Bedford Row
Hannah Markham, head of the children’s law practice at 36 Bedford Row, is among the most junior female barristers to be made up in the 2016 silk round, at 18 years’ call.
“I knew I wanted to apply at some stage and fortunately I’ve had some major cases in the Court of Appeal and against formidable silks in the last few years,” she says. “Plus, I’m still quite junior so I thought if I tried and didn’t get it I could always try again.”
Markham says she felt she had a “responsibility to the rest of the women” coming up behind her to “prove you can go for it”.
“I’ve been a mum throughout my entire career at the bar as my daughter was three when I was called. I wanted other women barristers to know we can do it even with all these other responsibilities,” she adds.
On why such a low percentage of women apply for silk, Markham says she is mystified.
“I can’t work out why so few women apply. It must be a combination of things: women questioning themselves more and often juggling family commitments that mean taking the time out to do a long application is just not on the agenda.”
The statistics are also in part skewed by practice area. “You’ve got to have the right cases to submit a good application; they need to stand out and be a bit different or unusual,” Markham says, adding that this can be more difficult in family or children’s law, which traditionally have a high percentage of female lawyers, as the legal issues can often repeat from case to case.
Markham’s headline cases in recent years include representing a mother in a same-sex relationship who had her non-biological child taken away from her after the relationship broke down. “We secured the first freestanding Article 8 declaration of family law,” she says.
She also acted in a case involving a British father falsely accused of sexual abuse as part of a satanic ritual that garnered national news attention last year, and appeared three times before the Supreme Court over the two years covered by her application.
Outside of the courts, Markham has pioneered a court skills training programme for social workers to help them prepare for giving crucial witness evidence before a judge.
“I deal with such difficult cases involving the death of children and abuse. You need a bit of headspace sometimes,” she says. “I’m hoping that taking silk will mean I have more time to do that on the most complex cases and also take the time to write more articles and do more training.”
James Ewins, QEB
Family law barrister James Ewins is one of just three family practitioners in this year’s silk list and the only one with a family finance focus. His practice turns on financial claims including jurisdictional conflicts, high-profile divorce cases, pre, mid and post-nuptial agreements and Inheritance Act claims.
At 19 years’ call, he says his seniority “felt like the normal level” in his practice area to apply for silk. “I was doing more and more cases against silks and leading more teams, so I felt as if my career was at the right point to try my hand at applying.”
Although the majority of the 12 cases on his application are confidential, one of Ewins’ standout cases of the last few years undoubtedly turned heads. The high-profile Wright v Wright spousal maintenance case, in which Ewins was part of a team acting for the – ultimately successful – husband, fed debates on whether there should be a radical review of the courts’ approach to maintenance payments on divorce.
“I expect to do more of these complicated maintenance cases, the ones with the knotty point of law”
The Court of Appeal upheld an order last summer ruling that the ex-wife of the millionaire racehorse surgeon cannot rely on maintenance payments from her former husband for the rest of her life, ending a case that launched in 2008.
“I expect I’ll be doing much more of these kinds of cases now. The complicated ones with a knotty point of law,” he says of his recent appointment.
“Family law is a relatively small area and I don’t think there were a huge number of applications, so it seems fairly representative.”
Marina Wheeler, Crown Office Row
Public and human rights barrister Marina Wheeler expects her practice to change significantly following her appointment to silk.
“I’ve been doing a lot of Government litigation over the past few years,” she says. “All of the armed conflict cases over Government powers to detain insurgents was so interesting I didn’t want to give up the panel work.”
Wheeler will come off the Government panel now that she has taken silk, and instead aims to focus on NHS, national security and local authority work as well as mediation.
“I will have to slightly readjust given I’m coming off panel, and there might be a slightly fallow period,” she says, adding this change is why lawyers instructed by Government are often in “no rush” to apply for silk.
“I’m a bit evangelical about mediation and have been a qualified mediator for some years without having had time to do it, but I’d like to focus on it if things are quieter.”
Having been called to the bar in 1987, Wheeler says she took “a longer route to silk than most”.
“Some people put their heads down and do a 15-year sprint,” she says, speaking of her decision to do a masters degree in Brussels immediately after pupillage then spending four years at a boutique law firm doing EU law work. “Then I spent most of the nineties having children before getting my head down again in 2000 and building my practice.”
“My practice has become part of a new kind of litigation: human rights cases that are a mixture of public law and cross-examination”
Wheeler’s most recent high-profile work includes advising the NHS on the reconfiguration of North West London hospitals and a difficult case for the CPS resisting a human rights damages claim brought by an alleged sexual abuse victim. “It was a hugely interesting case. It was about pushing the boundaries of human rights principles,” she explains.
She adds that her practice has become “part of a new kind of litigation”, which is “human rights cases that are a mixture of public law and cross-examination”.
Wheeler was one of six barristers at 1 Crown Office Row to take silk this year, including two women.
“As someone who has taken silk later, I feel it’s about being confident enough to do it your own way and not be spooked by younger people who have fewer commitments outside the bar zipping past you on the route to silk,” she says, adding “there has got to be a focus on supporting women to stay at the bar”.
“Part of that is women themselves reaching out to younger members and reassuring them that there are really difficult years but it does get better.”
Gerry Facenna, Monckton Chambers
Newly made up Gerry Facenna has a broad practice of public law, EU, commercial and regulatory matters. He is also among the most junior barristers to take silk this year at 15 years’ call.
“I got to a stage where I was doing a lot of work on my own, led nine juniors over a two-year period, and was doing a lot of work in the Court of Appeal and being instructed as leading advocate more and more,” he says of his decision to apply.
Completing the arduous application process came at a particularly busy time, coinciding with Facenna’s paternity leave after the birth of his third child. “I was busy but thankfully my wife took over looking after the kids for a bit so I could sit down and do it.”
Finding the time to actually sit down and apply is one of the “main practical barriers” to taking silk, Facenna says, particularly when balancing growing a practice with raising a family.
In terms of his practice, Facenna is among good company in this year’s list, with public law juniors including Blackstone’s Shaheed Fatima and 11KBW’s Anya Proops also made up. “Some of the best public law juniors in the country have taken silk this year,” he says.
Facenna’s biggest recent cases include acting for Rosneft on a headline EU sanctions case in the European Court of Justice – a late instruction that required writing a skeleton argument and acting in court on an interim application within 24 hours of being instructed. He also brought in Dinah Rose QC to lead him on a complex challenge to regulator PhonepayPlus for clients he had nurtured from the outset. “That case had been my baby, it gave me a nice basis for my application,” he says.
“I have a broad practice and I want to continue doing that as a QC,” he says, “though my intention is to do fewer but bigger cases if possible.”
Thomas Plewman, Brick Court Chambers
Plewman skews the statistics of this year’s list as he was only called to the English bar in 2009, making him seem the most junior barrister to be made up by a significant number of years. In fact, Plewman enjoyed a 20-year career at the South African bar before moving to the UK in 2009 after being awarded local QC-equivalent status of senior counsel.
“I did a six-month pupillage at Brick Court Chambers to requalify in English law,” he says, adding that it was an odd experience working alongside the chambers’ younger pupils during that period.
“I moved over for a mix of family and professional reasons but also because London is the centre of the litigation market for my practice.”
Plewman took a deliberate step to distance himself from his prior South African instructions after the move in order to build up a purely English practice and “make sure I didn’t spend my life on a plane back and forth to Johannesburg”.
“Some people thought that taking silk in a second jurisdiction was not a matter of significance and is merely affirming something you already have, but I think the total opposite is true,” Plewman adds.
“Having moved to London mid-career in my forties, to reach the point of being appointed to silk is hugely meaningful for me in terms of achieving recognition and acceptance in this much bigger and more competitive pool.”
“Some people thought that taking silk in a second jurisdiction was merely affirming something you already have, but I think the opposite is true”
Applying for silk in London is a much more “substantial, formal and rigorous” process than in South Africa, Plewman says. He adds that his success means he hopes to continue “developing a classic trial expertise”.
“South Africa’s silk system is much more similar to the UK’s prior to the changes. It’s still a process largely internal to the profession,” Plewman adds.
On how his practice will change, he says “that’s the million-dollar question”.
“Since moving to England I’ve been a slightly off-quantity in that my call date was 2009 but I have much more experience that the average 2009-call barrister. I hope that now I’ve taken silk I will be seen to compete on the same standing as all silks newly appointed.”
Plewman’s biggest recent cases in London include acting for PricewaterhouseCoopers on a £1.6bn negligence row with financial services group Cattles. The case settled during judicial reading week after a year of preparation. He also acted for Sebastian Holdings to defend a $8bn claim by Deutsche Bank, which completed last year.
Siobhan Grey, Doughty Street Chambers
Doughty Street fraud and white-collar crime defence barrister Siobhan Grey was one of
17 members of the criminal bar to take silk this year. She has an imposing practice, often acting against prosecution silks on major cases brought by institutions such as the Financial Conduct Authority, Serious Fraud Office and HM Revenue & Customs.
“I felt ready for silk,” she says, adding she had worked on a string of complex cases in recent years, often alone as a junior. One of her standout cases was representing a pension trustee in the Court of Appeal who had been convicted of a £52m fraud. “The appeal was complex and involved a post trial disclosure exercise and the appeal was in the courts on and off for 18 months.”
“It’s criminal law but with a twist”
Grey has also recently defended a mental health case centring on an individual charged with arson; eight defendants charged with double murder in a trial lasting three
months; and a company director charged on 22 counts of fraud.
“It’s criminal law but with a twist,” she says.
Grey recognises that the criminal bar is often under-represented in QC appointments. “I do think it’s likely most of the applicants come from a civil background”, she says, adding cost pressures on criminal barristers could make it more difficult to compete for work at silk level.
“It’s definitely going to be a challenge now as a new silk, competing with very established and able silks,” she argues. “But I think my practice can continue to be a success with some hard work and determination and focusing on the high-calibre fraud work.”
Bridget Dolan, Serjeant’s Inn
Inquest and court of protection barrister Bridget Dolan was late coming to the bar, having been called in 1997 after a career in forensic psychology.
“My two main strands of work are inquests and court of protection work,” she says, adding her most complex and sensitive work includes arguing in cases that involve a judge making a life or death decision. “One of my biggest cases over the last few years involved working for the NHS Trust on a case involving a detained self-harming Jehovah’s Witness mental health patient who was refusing blood transfusions that were vital to his treatment.
“It was a complex human rights and ethical dilemma and included questions such as how to protect the doctor legally should the transfusion go ahead.”
Dolan’s practice is becoming increasingly important to both the press and the bar, with a number of court of protection practitioners made up in the last few years and Dolan’s caseload never far from the headlines.
“I have heard people say you have to wait 20 years to apply, but if you’re good enough you should apply when you want”
Her work on the In Amenas inquest into the deaths of Britons at the Algerian gas facility during a terrorist attack also won her the accolade of Barrister of the Year at The Lawyer Awards 2015. Dolan took on the mammoth task of acting entirely alone liaising with police, 250 witnesses, reams of evidence and advising the coroner on complex case history. The scope of the work was colossal not only in terms of documents but also in its ethical and emotional burden.
“I completed my application around the same time as the In Amenas inquest. The hours between midnight and 6am become incredibly important,” she says.
“Practitioners who specialise in inquests don’t get into the High Court as much as some civil barristers but there is still very high recognition of our work,” she adds. “No one should be discouraged because their practice doesn’t always bring them before appeals judges.”
On the subject of female silk appointments, Dolan says it is the responsibility of women QCs to get more women to apply. “I have heard people say you have to wait 20 years to apply, but if you’re good enough you should apply when you want. It’s our job to support women who have the quality to apply and help them understand the process. That starts with it not being such a big secret over whether someone has applied or not.
“It’s important people know that having a previous career or coming to the bar late doesn’t hold you back.”