The Common Law Bar

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 Queen’s Bench Division (QBD) 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.

The realities of the job

• Barristers tend to engage with a full range of cases throughout their careers, but there is an opportunity to begin to specialise at between five and ten years’ call. Although you can express an interest in receiving certain work from the clerks, most sets expect their juniors to be common law generalists.
• Advocacy is plentiful. Juniors can expect to be in court three days per week and second-six pupils often have their own cases. Small beginnings such as ‘noting briefs’ (where you attend court simply in order to report back on the proceedings) and 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 having to digest a file of documents quickly is commonplace.
• Acting as a junior on more complex cases allows a younger barrister to observe senior lawyers in court.

Current issues

• The trend for mediation and arbitration of disputes, and the trend for solicitors to undertake more advocacy themselves, have reduced work at the junior end to some extent. However, while solicitor advocates frequently take on directions hearings, they are still rarely seen at trial.
• Conditional fee agreements – aka ‘no win, no fee’– have definitely affected barristers’ remuneration, especially for PI claims. Ongoing changes to the public funding of legal services are also having an impact. On a more positive note, the growth of third-party funding of cases and increased use of risk-sharing arrangements by solicitors may lead to an increase in the volume of work for barristers.
• Britons have become increasingly litigious over the past few decades. Personal injury and clinical negligence claims (often against the NHS) are on the rise. Individuals are increasingly aware of the ever-expanding protections afforded by health and safety regulation and professional codes of conduct. The result: more litigation.

Some tips

• Though there are a lot of common law sets, pupillages and tenancies don’t grow on trees. You’ll have to impress to get a foot in the door and then make your mark to secure your next set of instructions.
• If you want to specialise, thoroughly research the sets you apply to – many want their juniors to retain a broad practice many years into tenancy, while others do allow some space to carve out a niche.