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.

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

  • The trend for mediation and arbitration of disputes and for solicitors to undertake more advocacy themselves, has reduced the amount of court work somewhat. Barristers remain involved with alternative dispute resolution, however, and while solicitor advocates frequently take on directions hearings, they are still rarely seen at trial.
  • Personal injury and clinical negligence claims (often against the NHS) are now an established part of the legal landscape, as individuals have become aware of the expanded protections afforded by health and safety regulation and professional codes of conduct. After being disappointed by plans to cap whiplash compensation pay-outs and ban offers to settle without the provision of medical evidence, personal injury practitioners got a boost from a change to the discount rate in March 2017 which will very likely see compensation pay-outs rise by quite some margin, much to to consternation of insurers.
  • Since legal aid was cut from common law areas like personal injury in the 1990s, conditional fee agreements (aka 'no-win no-fee') and third-party funding of cases have helped sustain barristers' work volume.
  • The Jackson reforms of 2013 have drawn criticism for reducing access to justice. The main change they introduced is that conditional fees and certain insurance premiums are no longer recoverable from the losing party, laying a greater financial burden on claimants and resulting in less litigation. Further changes may be on the horizon: in a report published in July 2017 Lord Jackson recommended further changes including the introduction of further fixed recoverable costs for claims up to £100,000 on top of the fixed costs imposed on claims of up to £25,000.
  • The introduction of Employment Tribunal fees of up to £1,200 has been ruled unlawful by the Supreme Court. For those with employment practices this is good news, as government statistics showed a reduction of 79% in the number of cases brought since the introduction of tribunal fees in 2013.

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.