Smooth as silks

He’s too fat to be a silk. It’s all right to get fat once you’ve got it, but certainly not before.” The silks system has been derided for being arbitrary, discriminatory and – as this quote from one who has already attained QC status illustrates – is widely perceived as a licence for the bar to swell its already considerable paunch. Contrary to popular belief, those calling for the abolition of the system do not reside solely on the solicitor’s side of the profession.

Richard Fernyhough QC, a leading construction silk and former head of Keating Chambers, says: “My own view is that it’s not a good system at all and should be abolished. All other professions rely on market forces and I see no reason why the bar should be any different. To believe that lawyers are more important than consultant physicians, architects or engineers is self-delusional.”

Fernyhough stipulates only one possible caveat, suggesting a potential benefit of the system to foreign clients. Others are less sympathetic. Here are just a few: “I’m not sure the system serves anyone’s interests save that it provides reassurance to anxious clients and solicitors who are completely out of their area”; “It is no guarantee of quality”; “Without question, the system of silks distorts the market”; and, “If you’re senior enough, and valued enough by your instructing solicitors, you’re good enough. You don’t need to be a QC for that”.

Nevertheless, an overwhelming majority of both sides of the profession are in favour of a quality mark for the bar, albeit a reformed one. After all, what else do barristers aspire to? For the time being at least, partnership is not an option. As for the judiciary, you will have to ask Anthony Boswood QC about that one. (As The Lawyer revealed last month, Boswood, having been cajoled into accepting a High Court appointment, later had it revoked by a former fellow tenant at Fountain Court Chambers, the Lord Chancellor Lord Falconer.)

The Lord Chancellor, despite extensive consultation and more than 12 months having passed since it was announced that the granting of Queen’s Counsel (QC) would be suspended, remains resolutely silent on its future. The most credible rumour currently in circulation is that some form of reformed quality mark system will make its entry – at some point.

But this is silks week and The Lawyer could not wait for any announcement that might be pending from the Department of Constitutional Affairs. An impatient bar also needs a bit of TLC, which is precisely what we have afforded 50 outstanding individuals in practice at the bar with our new quality mark: The Lawyer Counsel (TLC).

In recent weeks The Lawyer has canvassed across the profession on how a replacement for the QC appointment process should work and who, in 2004, warrants such an award.

One of the most widely stipulated criteria, which we have instituted into our TLC mark, is that greater weighting ought to be afforded to the views of the client, whether they be solicitors, in-house counsel or other bodies that instruct the bar. To compile our own version of the silks list, The Lawyer took soundings from almost 200 individuals, which included members of both the bar and the judiciary.

Although acknowledging the improvements made by the Lord Chancellor’s Department (LCD) in the last two years, most would also like to see responsibility taken out of the Lord Chancellor’s hands, and certainly The Lawyer’s editorial team has not been afforded any final right of veto.

The preferred option is for it to be run by an independent body, along the lines of the Commission for Judicial Appointments, rather than allowing control to pass to the Bar Council.

One of the key constraints of this first year of TLC has been having to rectify the meddling of Falconer’s predecessor, Lord Irvine of Lairg. Irvine, whatever his motivation, did much to devalue the currency of silk by flooding the market in 2002 and 2003 with an astonishing 234 silks. The average number of appointments in the period 1984-2001 was just 71; last year there were 121 new QCs.

That is why, at least in its first year, TLC has an artificial threshold of 50 barristers, which has unfortunately resulted in a number of worthy individuals missing out, who in a normal silks round would have made the grade.

In putting forward individuals for the TLC award, many nominators wished to attach certain criteria before it was granted. Some had merit (for example that candidates be subject to a plain English exam), while others did not.

“They shouldn’t be allowed to stand with their feet in anything other than parallel lines,” demanded one top City litigator, denouncing what he perceives as the persistent pomposity of the bar.

One condition that has been incorporated is that the TLC mark is granted for a period of only 10 years. At the end of that period a barrister must reapply.

There are a number of striking features to the composition of the first TLC list.

First is that it contains only three criminal practitioners, which will be derided in some quarters. Two inclusions – Edward Henry at Hollis Whiteman Chambers and Julian Knowles at Matrix Chambers – practice in white collar crime. The other is 7 Bedford Row’s Maureen Baker, who was first junior for Ian Huntley in the Soham murder trial.

This is certainly not intended as a slight on the criminal bar. But excepting white collar crime and the most serious murder cases, what value is a criminal silk today? They are under enormous pressure on fees – one leading criminal silk recently commented that in the last 12 months alone his salary had plummeted by 50 per cent – and many are attempting to rebuild their practice in other fields, for example by looking to exploit the boom in regulatory work. After all, the criminal bar continues to produce some of the profession’s finest advocates. The current crop includes Clare Montgomery QC, Michael Mansfield QC and Ronald Thwaites QC (the latter having already made the conversion to civil practice).

This policy was endorsed by a number of eminent criminal silks. “Due to the phenomenal number of criminal silks appointed over the last three years, the currency has become totally devalued. This year, I would have appointed three or four,” said one.

A second feature of this list is the number of women. During the course of our research we were struck by the number of female barristers nominated – 30 out of a total of 160, or 19 per cent.

Several of those canvassed for nominations made the point that, while the Lord Chancellor was busy flooding the market with silks, the supply was cut off just as a considerable number of women attained a level of seniority and experience commensurate with eligibility.

The Lawyer’s list reflects this, with women representing 24 per cent of the total TLCs. In 2002 and 2003, the last two years of the QC system, there were 12 and nine new female silks respectively. This equates to 27 and 23 per cent of total female applicants in those years, but only 11 per cent and 7.4 per cent of the total awards.

Those in our list cover a broad range of practice areas, including public, commercial, EU, family, construction, media and competition work.

Two – Beverley-Ann Rogers of Serle Court and Elizabeth Birch of 3 Verulam Buildings – are significant for another reason: they are both mediators.

As revealed by The Lawyer (15 March), the LCD has given a commitment to the Treasury to cut the number of commercial and civil cases in the UK’s courts by 200,000 by April 2006.

This massive cutback, partly to reduce litigation costs, means the cases will have to be dealt with by alternative dispute resolution, most obviously mediation. Although a little slow out of the blocks, the bar has embraced this burgeoning area of practice and many barristers now act as full-time mediators.

As a result, of course, they are not appearing before those High Court judges who are largely responsible for supporting applications for QC.

Mediation is clearly here to stay, and will become an increasingly important part of the litigation process, making it an integral skill for a barrister to possess. It is therefore important that those barristers are rewarded for attaining success in this field.

Not appearing before the right people is equally a problem for those practising outside London. It is increasingly unusual for senior juniors to appear before High Court judges. To improve the chances of the regional bar, improved weighting must be afforded to district judges on circuit and, of course, the clients.

On our list is Richard Stead of St John’s Chambers, who it is believed represents the first civil ‘silk’ in Bristol since 1999.

Birmingham received the most nominations of any regional centre, with two making the list: clinical and professional negligence practitioner Mark Anderson of 5 Fountain Court and St Philips Chambers’ Alistair Wyvill. One fan of Anderson remarks: “He’s an outstandingly knowledgeable lawyer, with formidable analytical powers who presents an argument very forcefully.” Wyvill, meanwhile, was only called to the UK bar in 1998, but does boast 12 years’ experience practising in his native Australia.

In Liverpool, Exchange Chambers’ Louis Brown makes the list, as does Neal Berragan of Kings Chambers in Manchester.

Back in London, the engine room of Essex Court Chambers outstripped all its rivals with the number of individuals nominated for the award. In the end, as with Blackstone and One Essex Court, three were afforded TLC status.

Essex Court’s junior tenants are clearly just as much responsible for the set’s growth in recent years as head of chambers Gordon Pollock QC and his record £3m brief fee (turnover and revenue per barrister are both up by 10 per cent according to last year’s The Bar Top 30, the highest of all the magic circle sets).

Perhaps predictably, given The Lawyer’s focus on the commercial bar, Blackstone, Brick Court (including Fergus Randolph, whose base in Europe might preclude him from recognition under the traditional system), 3/4 South Square and One Essex Court were the next best sets when ranked by volume of individual nominations.

But whether your practice is shipping, commercial, employment, media, planning, clinical negligence, insolvency, construction, criminal, public or EU law, congratulations to all those who made the list. And commiserations to those that did not make it this time. There is always next year.

Leaders of the pack

Toby Landau, Essex Court Chambers
Call date: 1993 Practice: International commercial arbitration

Toby Landau is probably too young to be awarded silk by the Lord Chancellor and it is not something he had even really begun to consider.

This is despite the fact that he is currently sitting as the arbitrator with stablemate Johnny Veeder QC – one of the doyens of international arbitration – arguing the case before him.

Landau, in his 10 years of practice, has rapidly developed a reputation in the field of international arbitration, both as counsel and more recently sitting as arbitrator, which now accounts for around 20 per cent of his arbitration practice.

Although arbitration is a rapidly growing area, it remains niche and as such silk status does not necessarily accord gravitas.

“In my particular field, the title of professor may be of greater value than that of QC,” says Landau.

Landau was certainly in the right place at the right time. His accelerated path to recognition began in 1993 when he spent three months with the Department of Trade and Industry during the period it was working on a new Arbitration Act. He then worked closely with Lord Saville on the drafting of the act, giving him unrivalled access to a developing field of practice.

In the last 12 months, Landau has been involved in cases where the value in dispute has ranged between $500m (£272.2m) and $1bn (£544.3m), covering the telecoms, pharmaceuticals, mining and energy sectors. He also spends time teaching and is the UK delegate to the UN section on arbitration.

Helen Davies, Brick Court Chambers
Call date: 1991 Practice: Commercial

Helen Davies only returned from maternity leave six months ago, so would probably not have applied in the last round, but she comfortably made our list.

Davies, who turns 35 in May, is one of 12 female The Lawyer Counsel. The volume of women barristers nominated for our silk system, compared with the numbers made up by the Lord Chancellor’s Department in recent years, was one of the overriding factors of the research for this feature. Davies believes this is largely a timing issue and remains a supporter of the system.

“I’m essentially in favour of a quality mark, which is what I think [silk] is, whether that mark is QC or SC,” she says.
Davies boasts a broad commercial practice – “anything with a contract,” she says – encompassing competition, European, professional negligence and insurance and reinsurance matters. The mix, says Davies, has not been disrupted at all by her six months on maternity leave.

As a junior tenant she was led regularly by head of chambers Christopher Clarke QC and titan of the commercial bar Jonathan Sumption QC, which introduced her to both heavyweight commercial matters and a broad range of City solicitors.

Clarke, for example, led Davies in Henderson v Merrett, the first Lloyd’s professional negligence case concerning the liability of members’ agents and accountants to Lloyd’s syndicates.

Currently, Davies is involved in a major reinsurance arbitration and is also working for one of the generic drug manufacturers facing price-fixing claims by the Department of Health over the production of Penicillin.

Jon Turner, Monckton Chambers
Call date: 1988 Practice: Competition

Jon Turner has just finished appearing for the Office of Fair Trading in the Competition Appeals Tribunal (CAT) hearing over the price-fixing of football shirts. Led by Stephen Morris QC of 20 Essex Street, Turner nevertheless assumed joint responsibility for witness cross-examination.

As standing counsel to the Director General of Fair Trading (DGFT), Turner has acquired considerable experience of the CAT, appearing in numerous high-profile hearings, including Freeserve v DGT, NAPP Pharmaceuticals v DGFT and BetterCare v DGFT.

Turner, whose practice extends to public and commercial law on the back of his competition work, as well as environmental (he appeared for Greenpeace last year in a Court of Appeal judicial review concerned with the importation of Brazilian mahogany), would have applied for silk in the last round.

“There’s a very strong case for a system of accreditation, although the criteria need to be looked at,” says Turner. “What you have to recognise particularly is the overriding responsibility to the court, including efficiency of advocacy and integrity, which are qualities that the market won’t otherwise necessarily recognise or reward. That’s what’s really important.”

Called in 1998, Turner is at the junior end of those considered for Queen’s Counsel – individuals are normally expected to have between 15 and 20 years’ practising experience. Turner was nevertheless one of the most popular choices for The Lawyer Counsel (TLC).

Jonathan Nash, 3 Verulam Buildings
Call date: 1986 Practice: Banking and insurance/reinsurance

“The most important thing is that a decision is reached [on the future of the silk system] either way,” says Jonathan Nash, who would have applied in the last round. “If it goes, so be it, but it’s important that we all know where we stand, because if it remains then it’s a major part of your career development.”

Nash’s practice has traditionally been dominated by banking work, but over the last two or three years it has expanded into insurance/reinsurance matters. This field has enjoyed a sustained period of growth – triggered by a series of major insurance collapses, such as Lloyd’s, and events such as the Iraq War.

The diversification of his practice is timely given the general malaise affecting the commercial bar. His set, which won the Chambers of the Year Award at last year’s The Lawyer Awards, has also moved to exploit the opportunities in insurance work, and Nash is now one of a team of around 12 barristers specialising in the area.

He is currently being led by head of chambers Christopher Symons QC in a case concerning insurance claims arising out of the ‘pinking phenomenon’, a chemical reaction in white plastic windows that turns them pink when facing the sun in a north-facing aspect.

Insurance now represents 40 per cent of Nash’s practice, with a similar portion spent on banking work and the balance on professional negligence and general commercial disputes.

The Lawyer Counsel:
who ought to be taking silk this year?
Michael Hicks 19 Old Buildings 1976
Elizabeth Birch 3 Verulam Buildings 1978
Beverley-Ann Rogers Serle Court 1978
Richard Stead St John’s 1979
Simon Barker Maitland 1979
Alan Griffiths One Essex Court 1981
Derek Holwill Hailsham 1982
Neal Berragan Kings 1982
Richard Gillis One Essex Court 1982
Alistair Wyvill St Philips 1982
David Owen11 20 Essex Street 1983
Mark Anderson 5 Fountain Court 1983
Heather Rogers9 Matrix 1983
Martin Forde10 1 Crown Office Row 1984
Charles Cory-Wright 39 Essex Street 1984
Maureen Baker1 7 Bedford Row 1984
James Eadie Blackstone 1984
Deborah Eaton One Kings Bench Walk 1985
Mark Cannon Four New Square 1985
Fergus Randolph Brick Court 1985
William McCormick Ely Place 1985
Iain Purvis 11 South Square 1986
Jonathan Nash5 3 Verulam Buildings 1986
Richard Humphreys 4-5 Gray’s Inn Square 1986
James Mellor13 8 New Square 1986
Nerys Jefford Keating 1986
Craig Orr2 Fountain Court 1986
Clive Lewis 11 King’s Bench Walk 1987
Lexa Hilliard 3/4 South Square 1987
Antony Zacavoli 3/4 South Square 1987
Timothy Howe6 Fountain Court 1987
Anthony de Garr Robinson One Essex Court 1987
James Ayliffe Wilberforce 1987
Philippa Watson7 Essex Court 1988
Edward Henry Hollis Whiteman 1988
Sam Neaman Littleton 1988
Jon Turner Monckton 1988
David Edwards3 7 King’s Bench Walk 1989
Stephen Kenny12 7 King’s Bench Walk 1989
Dinah Rose Blackstone 1989
David Foxton4 Essex Court 1989
Louis Browne Exchange 1989
Nathalie Lieven Landmark 1989
Jennifer Eady Old Square 1989
Colin Birss Three New Square 1990
Michael Fordham Blackstone 1990
Helen Davies Brick Court 1991
Andrew Thompson Erskine 1991
Toby Landau8 Essex Court 1993
Julian Knowles Matrix 1994