Against the clock

There are unlikely to be any reliable statistics on how early in a case we are instructing counsel in 2010, or how early we ever did. To attempt a comparison one must select another period '“ for example 1995, a few years before Woolf, but not so long ago that no one can remember. In the absence of statistics, I have conducted a straw poll of solicitors, barristers and clerks. The opinions set out here are chiefly based on impression and instinct.

In some circumstances the question 'are solicitors deferring instructions to counsel?' does not arise. Where, for example, the amount at stake is such that involving counsel from the start is an obvious and automatic decision, or where the solicitor concerned is not a litigator and/or needs guidance in conducting a case, or where the solicitors have in-house counsel or where counsel's role is to provide advice outside of litigation. Here we are looking at litigation in which the solicitor has a choice about whether, or when, to instruct counsel. There may be a distinction between interlocutory work and trials: the likelihood is that the justification for involving counsel at trial is much greater than for interlocutory work.

The indications are that we are instructing counsel later and later. Half a generation ago the decision to go to counsel '“ and without waiting '“ would have been regarded as normal. In 2010, solicitors stop and think: can I justify the extra cost, who will bear it, and when?

Loose change

Over the decades, solicitors have become better qualified and more confident to do what was once regarded as counsel's preserve: draft pleadings and witness statements, research the law, do the advocacy. Today, there are far fewer instructions along the lines of 'herewith the file. Please advise generally.' Indeed, years ago, where solicitors instructed barristers to perform functions such as preparing lists of documents and drafting witness statements, one was left wondering how they justified their involvement to clients who understandably felt the barrister was doing all the work. With increased skills '“ all the more if the solicitors have their own suitably-qualified advocates '“ going to counsel became less necessary.

There is also the worry that barristers, for all their recognised skills in advocacy, cross-examination and the very rapid absorption of material, may not be better advocates when the subject-matter of an interlocutory hearing is procedural; the solicitor who has lived with the case for months or years may be of more assistance to the court (and the client) than counsel instructed shortly before the hearing.

Selecting the right counsel is a responsible part of the litigation solicitor's function. The problem about this responsibility is that, in the nature of on-your-feet advocacy, you will not know whether you have made the right choice until after the performance. Your counsel may have been brilliant beyond expectation last time, but may not be the next time. In these circumstances, it is particularly difficult to expect the client to pay for the involvement of counsel when the client says that he has known and trusted you for years and he would have fared better if you had appeared.

Primarily, however, the decision about whether or when to use counsel is likely to be a question of cost: how much, and when? In the past, a relatively relaxed attitude prevailed not only to the resolution of inter partes costs issues '“ which were generally left to be sorted out at the conclusion of the case '“ but also to the paying of counsel's fees and the day-to-day funding of solicitors' practices. A broad-brush approach to all inter partes costs issues looked at from the perspective of an overall conclusion was just as likely to achieve a fair distribution of costs between the parties as an item-by-item assessment for each interlocutory episode. Under that regime, the incidence of solicitors being left unpaid or underpaid was no greater than it is now.

Money talks

In 2010 and for the foreseeable future, recessions aside, solicitors must more urgently call for payment from their clients, and keep costs down as far as possible. Increasingly aggressive demands from counsel's clerks for payment regardless of whether the solicitor has been paid, and for brief fees to be paid in advance will, understandably, cause solicitors to think twice about when they undertake liability for counsel's fees (which they may have to pay out of their own pockets in the short term) or whether they should use counsel at all. Concern about the long-threatened obligatory Bar contract will increase some firms' reluctance to use counsel.

For interlocutory hearings there are two further factors: the need to pay immediately if unsuccessful '“ and to demand money from a defeated client '“ is bad enough, but what if I succeed? Assume my firm's fees are £6,000 and counsel's fees are £4,000. The court on summary assessment awards only two thirds of the total, as often happens. If I am on the hook for counsel's £4,000, my remuneration '“ after success, to add insult '“ looks very thin indeed. Much easier for me to do it all myself for £10,000; writing off £4,000 of my time is a lot less painful than writing off £4,000 and paying out £4,000.

CFAs may skew things further. Where counsel is on a CFA there must be a temptation for the solicitor to reduce his exposure in a doubtful case by using counsel more, but, where the client is paying for counsel but has a CFA with his solicitor, the client at least will want counsel's fees to be kept down, as will any solicitor who is on a CFA but is also liable to meet counsel's fees.

Woolf imposed great pressure on parties to concede in the interests of settlement. Perhaps too much pressure. Fear of the adverse consequence of not conceding is so great that many parties with legitimate rights to enforce with the assistance of the court are too terrified to try. Quite apart from any accidental reduction in access to justice, the post-Woolf approach has drastically reduced the work. The hushed-mausoleum atmosphere today in the QBD bear garden (once justifiably so-called because of the throng and hubbub) demonstrates the fall-off of interlocutory work. If, as a consequence, barristers are keen to collect those fees the reduced throughput has generated, well and good, but they should not be surprised if solicitors under similar pressures decide there are cheaper ways than using counsel of achieving the desired result. In 1995 I suspect that barristers' fees were slower to come in but that their overall earnings were greater. Allowing solicitors longer to pay may have generated more work for which barristers would ultimately, albeit more slowly, be paid.

New age

Are we handling cases differently now, compared to 1995? We are doing more file-management work '“ client ID, anti-money-laundering, note-making, formal provision of cost and timetable information, formalities on termination etc. '“ which someone has to pay for but which have more to do with demonstrating compliance than with promoting the client's cause.

At every stage in litigation post-Woolf there is more preparatory work, thus contributing to the frontloading of cost '“ much of which in cases which do not run to trial will have been unnecessary. We have little choice about either, but both contribute to the overall cost of litigation and are relevant background factors when solicitors consider whether to spend their clients' money or their own on retaining counsel. We are less dependent on counsel than we were 15 years ago. The decisions about whether and when to involve them (and who to select) are decisions which it is not right to expect most clients to be able to take. There are costs risks in going to counsel too soon, and worse in going too late or not at all.

If in the future solicitors resort to counsel later and later, what are the implications?If counsel is not involved at all, or is involved at a stage when he has insufficient time to get up to speed, the quality of the advice cannot be improved and will probably be reduced. Examination of the case by an additional lawyer with slightly different training and perspective can only be beneficial.

The quality of advocacy will, in most cases, be reduced: specialist advocates with years of training and experience are likely to be better than those without that background, no matter how good they are at other functions in their professional lives. In the short term, however, cost will determine the decision, depending on whether the client or the solicitor bears that cost: is the likely enhancement in advice and advocacy justified by the certain escalation in cost?

More worrying is the long-term possibility that if the demand for independent barristers continues to decline the independent Bar as we have known it may disappear. Whether anyone foresaw this as a by-product of Woolf is unlikely, but it would be a disaster for the conduct of good litigation in England if we lost the facility of obtaining from an independent Bar competent, specialist and, when necessary, immediate advice.

I suggest two trimmings of the sails. These will enhance access to justice, improve the quality of the advice and advocacy provided to the client and help to preserve the independent Bar. First, while maintaining and promoting rigorous case management, end the requirement in all but the most outrageous cases that interlocutory costs be paid immediately; this should enable parties to make proper interlocutory applications without excessive fear of the costs consequences. Second, a gentler approach by clerks to the payment by solicitors of counsel's fees: this would encourage more frequent and earlier involvement of counsel in interlocutory work without excessive concern about funding that involvement, benefiting both the client and the court.

In England we have a civil litigation system which, while not perfect, is better than most. It must not be allowed to decline in quality. Failure to make proper and timely use of the resource provided by our independent Bar makes no sense, and allowing its demise would do irreparable harm. If my instinct is right we seem to be stumbling straight into that disaster. I would be very relieved to be corrected.