Litigation, aviation, contamination: Michael Rawlinson QC

Described by Chambers UK 2021 as “an encyclopaedic legal brain”, Michael Rawlinson QC’s approach to cases is not what one would expect. A pragmatic silk, reading Westlaw as part of his morning routine, his unassuming and unpretentious down-to-earth manner belies an approach to cases which is rather different to one’s average silk – who is notably very much at ease with both his lay and solicitor clients. His unique and unconventional caseload, however, differs substantially from the norm – with litigation and inquests involving matters such as aviation, contamination claims, human rights, and personal injury (but often in unusual circumstances).

His cases are dynamic and diverse – covering areas from PI and industrial disease, to inquests, arbitration, aviation group litigation, military claims, and, on occasion, sport. His reported cases include Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 (HL), R (Parkinson) v HM Senior Coroner for Kent [2018] EWHC 1501 (Admin), myriad military inquests, and the Richard Westgate case (which was the first time the health concerns for aircrew/pilots arising from the contamination of recirculating air in most passenger jets, was raised).

Reflecting on the path which led to his current practice profile, Rawlinson QC recalls: “I was Called in 1991, and, unlike the situation for applicants these days, who now face infinitely greater competition, received 3 offers of pupillage – two in London in defamation and EU law, and one in general PI in Manchester.” Faced with such a decision, he opted for Manchester – commencing pupillage at 28 St John Street, which, much later, became the modern St John’s Buildings. From there, he “…moved to Kings Chambers in Manchester in 2003, and took silk in 2009 at which stage I also joined 12 KBW – and I have been full member of both ever since.”

Nevertheless, niche and unorthodox cases have not always been the mainstay of his work – with a decade spent in common law work, something upon which he still draws today: “In common with most Manchester juniors, I did everything for the first ten years, crime, family, personal injury, landlord and tenant, contractual disputes and equity (with widely varying levels of comfort and success!). After 2000, my work settled down to its principal areas – where, for a long period of time, I acted on both sides of the fence.”

On his areas of practice, Rawlinson QC contemplates for a moment, before reeling off a list of litigative areas – from the routine to the remarkable: “I act in disease litigation – any case where it is alleged that exposure to X caused the development (of usually the cancerous) Y – but am increasingly tending towards asbestos induced cancers. However, every case is different. I also act in inquests – with an increasing specialism in military deaths – the Nimrod case being one such example (https://news.bbc.co.uk/1/hi/uk/7932791.stm). More generally, I also act in traumatically induced PI, with an increasing specialism for aviation.”

On PI and inquests in general, Rawlinson QC finds there is an increasing tendency towards the inclusion of human rights in domestic cases: “More and more of the claims have within them a tinge of applicable HRA principles – whether it's the triggering of the requirement of an enhanced investigatory inquest under art. 2, or art 2 and 8 claims as an ancillary to negligence claims where the HRA applies and the common law of negligence doesn’t quite provide a remedy. Another example is exploring the claims of a group of military personnel who were wrongly accused of war crimes in Iraq, and whether they give rise to art. 3 issues?”

Specialist group litigation is another emerging area in which he operates, adding: “More and more of the claims are group in nature – for instance, the aerotoxicity cases – but also in acting for the firemen who suffered psychiatric injury in Grenfell.”

Perhaps relevant when juxtaposed with aerotoxicity, Rawlinson QC has a keen environmental streak outside of court – and he notes: “In recent years I have become a non-executive director of Mere Plantations Ltd – who commercially grow teak in Ghana for lawful export. One concomitant effect of this is to sequester a lot of carbon from the atmosphere and to be a source of lawful teak.” However, for Rawlinson QC, there is always a connection to practice somehow – and, as if on cue, he adds: “This has led me to become familiar with the international regulation of forestry and carbon offsetting and this in turn led me to set up my (sorely neglected) ABS, Climate Law Ltd.” (www.climatelaw.co.uk).

Another of his passions is mentoring for practitioners of all levels of experience and practice area. Evidently a firm believer in passing down knowledge, he muses: “We should never forget at its core is the advising upon and representing within the most complex and valuable litigation. However, the role is wider than that. First, we have a duty to mentor. This takes two forms – external and internal. The external: as the more senior members of the Bar and solicitors’ profession, we need to assist the efforts of the more junior members in the drive to ensure as diverse talent pool come to and is retained long term within the legal profession. So, in common with a lot of others, we will give outreach presentations and in general try to be a point of reference.”

When pressed on how he realistically personally implements this in his daily work as a busy silk, Rawlinson QC responds: “We must be a point of reference to the juniors in our chambers and firms. I try to have an open-door policy for younger members of my chambers who ‘have a daft question’. In fact, it really is only very rarely a daft question – and as long as the junior has read the facts behind the question and has thought about it before asking, there is no such thing at all.”

On what he thinks this does for juniors, he adds: “This brings with it a number of benefits. It is a form of ongoing (albeit ad hoc) training for juniors who are either starting out, or subsequently moving into for what is to them a new area of work, or new seat – and it helps to ensure that our members have a high knowledge base alloyed to (I hope!) the added benefit of experience from the silk.”

There are also advantages, he feels, for firms and sets in taking such an approach – including “a tendency towards the maintenance of the provision of high quality advice to the market” – and, “more subtly, it sends a strong signal to the market that younger members can be accelerated through the complexity of the work which solicitors are prepared to send them because there exists a support network ‘from above’ in the set (or firm!)” – and he is pleased that this is a feature of chambers life which has been specifically commented on by the most recent Legal500 survey in respect of 12 KBW.

However, Rawlinson QC admits: “This is not pure altruism. The interactions with juniors is a two way street. There are aspects of the operation of the market from which I would become detached if I didn’t know about the problems in, say, proving lower value disease claims on restricted cost budgets – or the difficulties encountered on a daily by basis by juniors litigating in the County Court. Secondly, I learn just as much as I ever impart. Hearing fresh views on old problems, or views on new problems by juniors – who frankly are better lawyers than I will ever be – is fun, stimulating and educational. Finally, it makes for good business. A junior who trusts me or my judgment is one more likely to recommend me for a case.”

“That leads me to the second part of the internal aspects of CPD – ensuring that skill sets are maintained. Here I’m going back to my ‘professional childhood’ in Manchester – and the training I had then of ‘doing a bit of everything’. That included cross examination of witnesses (both lay and expert) on a daily basis. It also included ‘court craft’ – and the simple reality is, the more you are in court, the more the infinite variety and foibles of the players engaged throws up unforeseen situations, to which you have to make response instantly – but thereby store away as increased experience.”

In terms of the contemporary balance of instructions between juniors and silks, he contemplates: “The problem the junior–junior Bar face is that the changes to costs regimes mean that they get fewer and fewer opportunities to fight trials in front of Judges. We therefore champion the use of two (or in group litigation) more counsel. This becomes a vital source of continuing experience. So why should our solicitors pay for that? The reality is that properly deployed, multiple counsel actually makes economic sense. Two counsel in a case might only be actually deployed simultaneously only at the initial planning, mid case review and (if it occurs) trial stages. Otherwise, there is no reason why a properly guided junior should not be drafting pleadings, and wading through medical records etc, at half the rate which the silk alone would command if they were doing it themselves.”

This approach is not limited to CPD, education and training. Rawlinson QC also believes that his avant-garde approach to cases can, in its own way, explore the blurred boundaries of the edges of the law: “It is our job to look for the developing boundaries of the law and, when the right case arises, to be ready to deploy the arguments (either side) which seek to explore those boundaries. One example is a claim at the moment where we allege a death on the apron of Terminal 5 of Heathrow engaged a claim under art. 2 on the grounds that Heathrow is a hybrid public authority. Now, this is hotly denied by Heathrow, and the matter will require trial to determine which of us is right – but the argument is worth running, because under the more generalised rubric of providing ‘just satisfaction’ it may be possible to obtain compensation for specific heads of actual loss, which under the rules pertaining to quantification under the more conventional Fatal Accidents Act 1976, might be more difficult to sustain. Another example is a trial (Mather v MOD), which is listed for December, where, in the context of an allegation that exposure to paint solvents in the RAF led to the development of multiple sclerosis, the court will have to determine what the applicable test for causation is – is it mere proof of material contribution to the disease in fact by any tortious exposure element, as we claim? Or is it ‘but for’ proof, only to be achieved if it can be shown that the tortious dose more than doubled the risk – as the other side may contend?”

In terms of what belies PI litigation in the next decade, Rawlinson QC is, yet again, thinking towards the long-term future: concluding: “It will quickly be seen that quite a lot of the future viability of funding for disease litigation will turn on the outcome in Mather – particularly as I think the great pivot awaiting the disease Bar is moving away from legacy industrial claims towards more environmentally-based claims.”

Given his cases to date, his lateral thinking leanings on instructions, and his ambitious attitude towards the future, Rawlinson QC is very much a wildcard to watch in his specialist areas – and one whose practices are quite likely to change the law yet further in the years to come…

Michael Rawlinson QC (of 12 King’s Bench Walk & Kings Chambers) was interviewed by Chaynee Hodgetts FRSA, our Features and Opinion Editor, Mature Pupil Barrister with Nexus, the Chambers of Michael Mansfield QC, and Honorary Lecturer in Law: 12kbw.co.uk & kingschambers.com