The Commercial Bar

In a nutshell

The Commercial Bar handles a variety of business disputes. In its purest definition a commercial case is one heard by the Commercial Court or a county court business court. A broader and more realistic definition includes matters dealt with by both the Queen’s Bench and Chancery Divisions of the High Court, and the Technology and Construction Court (TCC). The Commercial Bar deals with disputes in all manner of industries from construction, shipping and insurance to banking, entertainment and manufacturing. Almost all disputes are contract and/or tort claims, and the Commercial Bar remains rooted in common law. That said, domestic and European legislation is increasingly important and commercial barristers’ incomes now reflect the popularity of the English courts with overseas litigants. Cross-border issues including competition law, international public and trade law and conflicts of law are all growing in prominence. Alternative methods of dispute resolution – usually arbitration or mediation – are also popular because of the increased likelihood of preserving commercial relationships that would otherwise be destroyed by the litigation process.

The realities of the job

• Barristers steer solicitors and lay clients through the litigation process and advise on strategy, such as how clients can position themselves through witness statements, pleadings and pre-trial ‘interlocutory’ skirmishes.
• Advocacy is key, but as much of it is paper-based, written skills are just as important as oral skills.
• Commercial cases can be very fact-heavy and the evidence for a winning argument can be buried in a room full of papers. Barristers have to work closely with instructing solicitors to manage documentation.
• Not all commercial pupils will take on their own caseload in the second six. At first, new juniors commonly handle small cases including common law matters like personal injury, employment cases, possession proceedings and winding-up or bankruptcy applications.
• New juniors gain exposure to larger cases by assisting senior colleagues. As a ‘second junior’ they assist the ‘first junior’ and QC leading the case. They use this as an opportunity to pick up tips on cross-examining witnesses and how best to present arguments.
• In time, a junior’s caseload increases in value and complexity. Most commercial barristers specialise by building up expertise on cases within a particular industry sector, eg shipping, insurance or entertainment.
• Developing a practice means working long hours, often under pressure. Your service standards must be impeccable and your style user-friendly, no matter how late or disorganised the solicitor’s instruction. In a good set you can make an exceedingly good living.

Current issues

• The commercial litigation market picked up during the recession, with an especially noticeable increase in the number of disputes related to insurance, professional negligence and financial institutions. However, these seem to have peaked in 2009, and in 2010 claims issued in the Commercial Court were back to 2008 levels. This could be down to a slow market recover – and the possibility of a double dip – as well as the trend for increased mediation and arbitration.
• One of the biggest cases of the last few years was a £740m claim brought against Total by insurers, competing oil companies and hundreds of local residents in relation to the explosion at the Buncefield storage depot. In the financial sector, big investment banks like Raiffeisen, RBS and Barclays have been fighting cases over the purportedly misleading sale of financial products.
• With more claims being settled through mediation, only the big, multi-issue cases tend to reach court, as there are so many other opportunities for dealing with smaller, less complex cases.
• Due to the recession, third-party funding of litigation and costs risk-sharing arrangements are now becoming more prevalent.

Some

tips

• Competition for pupillage at the Commercial Bar is fierce. A First-class degree is commonplace and you’ll need impressive references.
• Don’t underestimate the value of non-legal work experience; commercial exposure of any kind is going to help you understand the client’s perspective and motivations.
• Bear a set’s specialities in mind when deciding where to accept pupillage – shipping is very different to employment, for example.