Flaux: Problems accentuated by the pandemic
The heads of the judiciary have told judges and instructing solicitors to give junior counsel who are being led every chance to address the court as well.
It is the latest push to ensure that junior barrister get time on their feet amid concerns that KCs are increasingly being instructed even on procedural hearings.
A statement was issued yesterday by the Lady Chief Justice, Baroness Carr, Master of the Rolls Sir Geoffrey Vos, Dame Victoria Sharp and Sir Andrew McFarlane, presidents of the King’s Bench and Family Divisions respectively, Sir Julian Flaux, Chancellor of the High Court, and Sir Keith Lindblom
Senior President of Tribunals.
“Allowing junior counsel to participate in oral argument supports their continuing development as advocates,” it said.
“There is also anecdotal evidence, supported by empirical data from a Supreme Court study, that women are under-represented as leading advocates, especially in major civil and Business and Property Courts litigation.
“It is desirable therefore to give junior counsel in general, and female junior counsel in particular, better opportunities to advance oral argument in courts and tribunals.”
The judges acknowledged that this would not always be possible, but stressed that “in all suitable cases involving leading and junior counsel, particularly where junior counsel has been heavily involved in the drafting of the written argument, judges will be expected to ask whether a speaking part for junior counsel has been considered”.
Judges should “generally be amenable to both junior and leading counsel addressing the court or tribunal” – junior counsel could deal with intermediate points in the principal argument, for example.
The statement added: “In cases where this issue is likely to arise therefore, the parties should consider it in advance of the commencement of the oral argument.”
Last year, Sir Julian said in a speech that the judiciary was concerned [1] about the extent to which “junior barristers and solicitors’ participation is limited to being a tile without picture or sound on a Teams screen” in remote hearings.
He explained: “We have been concerned for some time that even in procedural hearings, particularly in large cases, the parties instruct [KCs] and the advocacy is done by them, a problem which has been accentuated by the pandemic.
“Without wanting to take the bread out of silks’ mouths, we have been trying, at least informally, to encourage parties to instruct junior counsel and solicitor advocates to do the advocacy at procedural hearings or at least some of it.
“The various court guides either do reflect or will in future reflect this… It is only by doing your own advocacy and making your own mistakes that you learn your trade.”
This was the case in the most recent edition of the Commercial Court Guide, published last year, which says: “Where a party is represented by more than one advocate at the trial, the advocates may share the oral advocacy, although the court’s permission is required for more than one advocate for a party to cross-examine the same witness. The court encourages oral advocacy to be undertaken by junior advocates.”
The guide says the court’s experience is that junior advocates may be best placed to deal with many case management issues and says parties should consider in every case whether attendance by the more (or most) senior advocates instructed is reasonably required and, even if so, whether, at least some of the matters arising “may appropriately be dealt with by the more (or most) junior advocates”.
It also highlights costs or other consequential matters as another area that could be undertaken by a junior advocate.