My chambers has worked remotely for over eight weeks now. Kings Chambers covers a wide range of civil litigation but not family or criminal law. Our offices are in Manchester, Leeds and Birmingham. Apart from ten furloughed staff, who are all being paid in full, all 160 barristers and employees, including four pupils, are working from home. Overall, we seem to have managed so far to work at over 80% of normal capacity, and there are early signs that this will improve in the weeks ahead.
Preparations are underway for a very limited re-opening of our premises with a skeleton staff, detailed risk assessments, new workplace rules and lots of PPE. But we have decided not to proceed to a re-opening just yet. The fact is that we have been working remotely very effectively. In-person civil trials are more or less non-existent at present and clients are not demanding to make paper deliveries to chambers. Barristers can work from home on civil cases, so why take the risks of requiring staff to come into city centres to work, even if those risks will be mitigated by careful management of the workplace? The R number in Manchester is reportedly twice that of London.
Each chambers will make its own decisions about these difficult issues. But what of the longer term? What will be the consequences for civil litigation if remote working continues for several more months, even into 2021? I did not think I would ever participate in an on-line “think in”, but I did on 11 May as I listened to feedback being given as part of the Civil Justice Council’s consultation on the impact of Covid-19. What I heard at that event and my own experiences as Head of Chambers at Kings, have caused me to think about some of the longer-term implications of this pandemic.
This Is Not Temporary
Had this crisis lasted for two or three months, after which our offices and courts had fully re-opened, then it would have served to nudge more practitioners towards paperless working, and more courts to conduct remote hearings, but it would not have provoked fundamental changes. As it is, if the crisis is to last for several months longer, it is inevitable that there will be existential effects on the civil justice system and the Bar. It will raise so many fundamental questions:
- Will the nature of advocacy change with many more remote hearings, paperless working, and increased use of ADR?
- Is the independent Bar likely to shrink?
- How can new members of the Bar receive proper training? Will the current pupillage model remain fit for purpose?
- Is the chambers model sustainable?
The Importance of Chambers
Ironically, the fact that the lockdown has forced barristers to work remotely from home has only highlighted the importance of being a member of a collective – of being part of a chambers. I don’t think I or many of my colleagues at Kings would have coped half as well had we been sole practitioners. It has been a team effort to keep work flowing, to liaise with clients and the courts, to train ourselves in paperless working, to collect fees, and to manage finances. One member has remarked that she feels more connected to chambers than ever before!
Barristers are all self-employed but by pooling their resources they can better withstand threats such as the current pandemic. We can plan to protect ourselves against other, different threats such as a cyber-attack. Different groups within chambers can bear a greater financial burden when others are suffering, in the knowledge that at other times the balance may shift the other way. One of the joys of being in a chambers is experiencing the collaborative spirit that has been so evident during this crisis.
Nevertheless, barristers’ chambers will have to change. Barristers will surely become less wedded to desks in expensive buildings. Mastery of paperless working and IT will become pre-requisites. Geographical location will become less important (which might improve the current imbalances that distort the relationship between the Bars in London and the Regions). However, chambers will still have a vital role to provide a huge range of services that barristers need to function effectively. I fervently hope that when we can all “meet again” we will do so. The trend towards working away from the “mother ship” was evident even before the pandemic, but now chambers will need to think even more imaginatively about how they can facilitate shared learning, mutual support and social connections amongst members, when barristers do not daily sit next to each other in the same building.
Hearings and Advocacy
I sense that we are moving now from the stage of just coping with remote hearings, to becoming more proficient at them. Preparation of bundles has already improved. We are refining our choices of backgrounds: no beds please, and stop showing off your book collection! Advocates learn very quickly to look into a camera rather than out of a nearby window! The kind of speech that might work well in a court room can seem over the top when delivered to a Judge sitting alone in an office. Concision is always important, but how much worse is a babbling advocate at a remote hearing.
Remote hearings can work effectively for many kinds of civil case. It is not right to say that they are always a poor substitute for the “real thing”. It is regrettable that initially some tribunals decided effectively to shut down and are only now beginning tentatively to conduct remote hearings. However, everyone would acknowledge that there are limits to the use of remote hearings. Some litigants do not have access to adequate devices to allow them to participate fully. It is not possible to take instructions fully during a hearing, and something is lost by not seeing a person give evidence in front of you rather than on a screen. Parties can feel alienated from the process. It is vital therefore that courts and advocates learn quickly how safely to conduct so-called hybrid hearings (a mix of in-person and remote participation) and in-person hearings in sufficiently large and well-managed court centres. These can supplement remote hearings to keep the wheels of justice turning.
It ought to be easier to manage the mechanics of a safe civil hearing during the pandemic when compared with those of a criminal trial with a jury, and those are beginning again already. Clearly the Bar has a self-interest in this happening, but more importantly the backlog of cases that will build if cases are not processed will risk overwhelming the system if the current situation carries on for months ahead. In the North West we have been very fortunate to have a forward thinking judiciary. Barristers will I am sure be eager to work positively with the courts to ensure that civil hearings can be conducted safely and justly.
This combination of in-person and remote hearings is likely to be with us in the long term. What is needed therefore is investment in efficient IT within the court system, and the possible use of remote hearing hubs where parties and witnesses can visit safely to join a hearing without having to go into court. After it is safe to re-open our buildings and to welcome visitors, my own chambers will be allocating rooms for use for remote hearings and in due course I can envisage them being used by advocates and clients to join remote hearings being held in courts around the country.
Inevitably there will be a growing backlog of cases and pressures will mount on the civil justice system. As litigants weigh up the costs and delays involved in proceeding through the courts, the attraction of alternative dispute resolution will surely increase. Joint Settlement Meetings, Mediation and Early Neutral Evaluation can all be conducted remotely. Many of my colleagues have been involved in remote ADR in recent weeks and report positively on the experience.
Managing a pupillage during lockdown is not easy. But the Bar needs to keep the inflow of new members, and we will have to adapt and find new ways of training and supervising pupils. In fact, the use of remote interviewing for pupillage applicants might have shown us a better way of managing at least part of the selection process. Perhaps it will not be possible to conduct an effective six months non-practising pupillage if we are still effectively in lockdown this autumn, but chambers will be thinking of imaginative ways to make it happen.
Established barristers need training and continuous professional development too. So far there have been a plethora of webinars and Zoom presentations, with far more attendees than usually grace an in-person event. I have been involved in a series of Masterclasses run for Manchester civil law pupils and practitioners – the third is due to be delivered by Marc Willems QC and Richard Hartley QC of Cobden House later this month: chambers in Manchester have come together to help each other.
The Bar is a competitive profession of self-employed individuals but this crisis has highlighted the importance of collaboration not only within chambers but between chambers, and between the Bar, solicitors, the judiciary and court administrators. If we continue in that spirit, we can forge new ways of working that will serve the justice system into the future.
Nigel Poole QC is Head of Chambers at Kings Chambers.