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

October 2020

  • Personal injury and clin neg have not been supported by legal aid since the ’90s. Conditional fee agreements (aka 'no win, no fee') and third-party funding of cases are now key to helping to sustain barristers' work volume. However, like most things in life, 'no win, no fee' arrangements are too good to be true. The Legal Ombudsman recently published a report expressing concern at the number of conduct referrals it had to make after several 'no win, no fee' lawyers provided a sub-par service or used to loopholes in contracts to elicit fees.
  • In July 2019, the Lord Chancellor announced a change to the way personal compensation payments are calculated – setting the Discount Rate, a figure to calculate high-value personal injury compensation, at –0.25%. The change follows concerns that the previous rate of –0.75% was leading to claimants being overcompensated. The rate is reviewed every five years.
  • London-headquartered firm Kennedys has asked the Northern Ireland Executive to change the way it calculates its discount rate, which is currently set at 2.5% to avoid ‘overcompensation,’ amid fears consumers in Northern Ireland are paying higher insurance rates than consumers in the rest of the UK and ROI. The Department of Justice launched a consultation in 2020 to address the issue.
  • The Covid-19 pandemic and subsequent court closures raised an issue for clinical negligence claims. 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.

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.