A number of commentators have long predicted that the Bar cannot maintain its position as a separate profession. Yet, 23 years after wholesale change was first heralded by the green papers of 1989 (when Lord Mackay was Lord Chancellor), we are still here as a separate profession, larger than ever before and still maintaining our position as the providers of the bulk of advocacy services.
The personal injury (PI) Bar is in very good health. There appears to be no shortage of work and the remuneration available is also regarded by most as more than adequate. However, there are several changes, some happening already and some on the way, which will have a significant impact. Whether the Bar remains in the position of, apparently, providing most of the advocacy services will depend on how it reacts to those changes.
The first significant change will come with the end of the recoverability of success fees. When conditional fee agreements (CFAs) were introduced, once the profession got used to the idea of taking risks and being rewarded when the case turned out well but not being paid when the case failed, then it managed quite well. In some respects and some areas of work the remuneration has been sufficient.
The issue of success fees not being recoverable, however, will raise a number of difficulties. First, it seems almost inevitable that the new regime, whatever its final form, will mean that there is less funding actually available at every level of work. Second, it seems not unlikely that in many cases there will, at least in the first instance, be significant competition flowing from the fact that some firms of solicitors (and inevitably the Bar which receives its work from those firms) will agree not to take any uplift. In the first instance, whether it becomes the norm will depend upon the extent to which firms find they can do a proper job – even in the most difficult cases – without some element of uplift in all or some cases.
Given that one reason for allowing an uplift in the first place is to enable lawyers to fund the more difficult cases then, certainly in more substantial cases, I believe that whatever the situation at the outset of any new regime, uplifts will be used in some instances even where not recoverable from defendant insurers. But in the short and medium term it seems inevitable that there will be less funding available overall and that means less work (or less well paid work) for the Bar.
The Bar will also have to face the fact that because of the likely cap on the percentage of damages that may be taken by way of success fees there will need to be agreement between lawyers as to how any success fee should be allocated. This, of course, is very different from the present situation where the success fee is added once calculated (which calculation may be automatic under CPR 45.16 and CPR 45.17) to the base fees as agreed or assessed.
Add to this the proposals to extend the portal to include employers liability (EL) and other claims and it becomes plain that there will again be downward pressure not only on fees but also on the amount of work available for the Bar.
Most people also know that many of those who qualify as barristers are not likely to get pupillage in chambers and there is increasing evidence of in-house advocates (often those who were unable to get pupillage) handling case management conferences and other interim hearings. Inevitably many of the more straightforward hearings in lower-value cases (assuming that they have not been dealt with through the portal) will be covered by solicitors firms themselves.
What then for the Bar? It seems inevitable that those sets that do PI will need to adapt. We need to be able to cover cases at lower cost which will mean some drop in income for many. This will be exacerbated as barristers from other fields, such as crime, seek alternative work to replace or run alongside their criminal practices (which for many are not perceived as providing a reasonable income having regard to their experience and after the latest revisions to fees and fee structures in criminal work).
As firms of solicitors develop so that more are owned by fewer people (and more outside capital is introduced) it is inevitable that this will also be an incentive not to use the Bar except where necessary. Equally those who hope the Bar will be left largely unchanged by alterations in the structural ways in which any lawyer can practice will, I think, be disappointed – already we are seeing the emergence of a number of alternative structures involving barristers – we will certainly see more.
No one can predict the future, but the Bar will need to adapt and it seems to me that among other changes we will see the following:
1. It will specialise more. We have already seen some sets doing predominantly PI, particularly on the defendant side. This is a change from the days when PI was just one strand (often a significant one) of a broader common law set. Those chambers, particularly those doing predominantly defendant work have reacted to the demands for more price sensitivity and specialisation and, so far as one can tell from the outside, have done well. The same is inevitable in claimant PI work and we should expect to see more specialisation of, and within, chambers which will inevitably go hand in hand with more price competition.
2. We will consider employing junior tenants and paralegals. For the bulk work there is a need to delegate some tasks (straightforward pleadings) to the lowest level at which it can be done. Likewise for the smaller court hearings. There is also a large pool of available talent – numerous able graduates of the BVC and BPTC who have not quite made it into pupillage who would willingly work as legal assistants or paralegals particularly if the Bar began to recruit for pupillage from their number.
3. Some firms will expand their advocacy departments – the answer for the Bar will, as ever, be to compete on price and quality, but this will require us to be better organised and to delegate as above.
4. Silks will more often advise and appear alone. Although, there will remain cases where a fully experienced junior of some seniority will be justified in addition to a leader. This is commonplace on the defendant side already and increasingly common on the claimant side.
5. There may be more cases on a direct access basis. This remains problematic and is a less certain outcome. It will be easier to do this for defendant insurer clients who are able to provide or set up their own administration to work with the Bar but for claimants it seems much less likely that many barristers will want to offer this service to individual claimants – we are simply not geared up for it nor trained to offer a full litigation service of this kind.
Will the Bar survive? Of course it will, and the flexibility it provides, together with the real skills in trial technique and advocacy, would be difficult to replicate in even the largest firms because we have such a wide market of solicitors who want to use us for those, which means we have room to specialise and keep our skills up to date.
But there is no doubt that to succeed we will need to redouble our efforts as a profession to remain accessible and to provide value for money. This has always been the case but unless we can show (as individuals and as a profession) that we add value and are adaptable then the future will be rather more uncertain both for individuals and the Bar as a whole.
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