In a nutshell
English common law derives from the precedents set by judicial decisions rather than the contents of statutes. Most common law cases turn on principles of tort and contract and are dealt with in the King’s Bench Division (KBD) of the High Court and the County Courts. At the edges, common law practice blurs into both Chancery and commercial practice, yet the work undertaken in common law sets is broader still, and one of the most appealing things about a career at one of these sets is the variety of instructions available.
Employment and personal injury are the bread and butter at the junior end, and such matters are interspersed with licensing, clinical negligence, landlord and tenant issues, the winding-up of companies and bankruptcy applications, as well as small commercial and contractual disputes. Some sets will even extend their remit to inquests and criminal cases.
Realities of the job
- Traditionally common law juniors had a broad practice, but specialisation is increasingly common, especially once you're over five years' call.
- Advocacy is plentiful. Juniors can expect to be in court three days a week and second-six pupils often have their own cases. Masters’ and district judges’ appointments lead to lower-value fast-track personal injury trials then longer, higher-value, multi-track trials and Employment Tribunals.
- Outside court, the job involves research, an assessment of the merits of a case and meetings with solicitors and lay clients. The barrister will also be asked to draft statements of claim, defences and opinions.
- Dealing with the volume and variety of cases requires a good grasp of the law and the procedural rules of the court, as well as an easy facility for assimilating the facts of each case. Interpersonal skills are important. A client who has never been to court before will be very nervous and needs to be put at ease.
- At the junior end work comes in at short notice, so you need to be able to quickly digest a file of documents.
- Acting as a junior on more complex cases allows a young barrister to observe senior lawyers in court.
Current issues
October 2023
- Following the Covid-19 pandemic, courts had to adjust quickly to functioning online. Remote hearings still continue in 2022 and may well become permanent in the future. In fact, the HM Courts and Tribunals Service (HMCTS) will be moving to a new virtual hearings service by March 2024. However, those cases involving more vulnerable clients seem to function best offline, especially since not everyone has equal access to the technology needed for remote communication.
- During the pandemic, many hearings were postponed or unable to go ahead virtually as evidence could not be given effectively by these means. One such case concerned alleged clinical negligence by University Hospital Southampton, resulting in a 15-month-old baby developing cerebral palsy. The claimant asked for the trial to be adjourned, as an in-person trial was impossible due to lockdown restrictions and a virtual trial would be unfair. Only one preceding clinical negligence case had been heard remotely. Mr. Justice Johnson ordered for the case to go ahead in person, with appropriate social distancing measures in place.
- The Department of Health and Social Care proposed a new scheme for fixed recoverable costs in clinical negligence claims in April 2022. This would mean that claims £25,000 and under would reach a quicker resolution, and at a lower cost to the claimant. The proposal includes a new streamlined process for claims alongside caps on the legal costs that claimant lawyers can recover for these cases.
- Personal injury and clinical negligence have not been supported by legal aid since the 1990s. Conditional fee agreements (aka 'no win, no fee') and third-party funding of cases are now key to helping to sustain barristers' work volume. In 2022, a client of a personal injury claim argued that she did not give ‘informed consent’ to her solicitors, who charged more than what had been paid in damages by the third party. The client here claimed that her lawyers owed herfiduciary duty (i.e., acting in her best interests). The Court of Appeal, however, ruled in favour of the solicitors, decidingthat the client was liable to pay the full cost as no ‘informed consent’ is required. That said, the Court still recognised that the solicitors had breached the Solicitors’ Code of Conduct with their lack of transparency regarding fees.The Law Society has welcomed the ruling, noting that lawyers should be compensated fairly for their work.
Some tips
- Though there are a lot of common law sets, pupillages and tenancies don’t grow on trees. Personality and oral advocacy are the skills that matter most.
- If you want to specialise, be aware that some sets want juniors to retain a broad practice several years into tenancy, while others will let you carve out a niche.