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GAZETTE
SEPTEMBER 1980
The High Court Writ is an innocuous document and it
is normal nowadays to use the short form of the
Statement of Claim. This is if I may say so, a pretty
useless document as it gives very little information but
certainly does not require to be drafted by Counsel. The
Notice for Particulars whilst asking a large number of
simple and often pointless questions, does not require a
particular expertise and the Reply to that Notice is
parpared on the basis of information largely supplied by
the Client. There is not an infinite variety of workings
used in the Defence and the appropriate form could be
selected by the most junior practitioner with little risk of
error.
Having become frustrated by these delays, I have
recently, on an experimental basis, arranged for our
Solicitors in certain cases, to enter both the Appearance
and Defence at the same time. This "arcane" procedure
as it is called by one Senior Counsel, initially caused some
confusion in the High Court Office but has since been
accepted as being valid. Many High Court Actions
involve very simple issues and the exchange of Pleadings
add little to the knowledge of either party.
At this stage, I would like to advert to the problems
created by the necessity to Brief two Senior Counsel and
one Junior Counsel in each and every High Court Action.
The size of the present High Court lists and the procedure
adopted by the Court make it difficult to predict
accurately, the date of Hearing in any one case. In
addition, the conflict between the Sittings of different
Courts make it impossible for a guarantee of attendance
to be given by Counsel. The operation of the "Two Senior
Rule" does little to alleviate the problem and carries with
it no guarantee of either Senior Counsels' attendance but
only improves to some extent the odds in favour of the
Solicitor. The Bar Council deny that there is any such
thing as a "Two Senior Rule" and say that Senior
Counsel is not obliged to insist on the instruction of a
second Senior in any case. The reality of the situation
however, seems to be far removed from this assertion. It
is normal practice, although quite improper, for an
Advice of Proofs to include the instruction "brief two
Senior and one Junior Counsel". This is in my view, no
longer acceptable and it is time that concrete proposals
emerged to ensure that a more equitable system operates.
There is no reason why a full Brief Fee should be paid to a
person who attends Court only briefly, if at all.
One must accept that the position of Counsel is an
extremely difficult one and that the issue of two Senior
Briefs may continue to be necessary until such time as the
conduct of our Courts is carried out in a more orderly
fashion. I would suggest however, that only one Senior
Counsel should attend to the case and election should be
made on the morning of the Court as to which Counsel is
available. The second Brief in my view, should
be returned, and what might be called a "Preparation Fee"
could be paid although this would not equate to the amount
of a Brief Fee.
Turning to the function of Junior Counsel — a fee
should in my view, only be paid where he attends the
Court and remains for the duration of the case. It is not in
my view, acceptable that a Brief Fee should be paid
merely for opening the Pleadings. You will be aware that
in England it is not now necessary to brief Junior Counsel
even though he may and probably will have prepared,
some of the earlier Pleadings.
I referred earlier to Opinions on quantum by Counsel
and it can appear that a view expressed at an earlier date
is shown to be correct. The following example, however,
may show that the apparent gain is in fact an illusion. A
motor accident happened in 1975 and negotiations took
place early in 1977 as a result of which an offer of
£12,500 was made in March of 1977. This was
acceptable to the Solicitor who however, wished to obtain
the advice of Counsel and the papers were duly sent to
him. Months passed and threats had to be used before the
papers were returned but the advice given was that the
sum offered was inadequate. That case is still outstanding
and may be heard at the turn of the year but now the
asking figure is £21,000. Let us however, return to
March 1977 and examine the figure of £12,500 and see
how it relates to the present time. We can do this in one of
two ways, by calculating the amount of interest that
would have been earned in the meantime or alternatively
by determining what figure would be required in present
day value to provide the same purchasing power. High
rates of interest have been available for the past few years
and
I2j%
per annum might represent a conservative
figure. Thus, £12,500 would have become £14,000 by
March 1978, £15,750 by March 1979 and £17,000
by March 1980. By the time the case reaches a
Hearing this amount could have increased to about
£19,000. If the sum of money rather than being allowed
to lie dormant, had been made to work undoubtedly
greater gains could have been achieved. By applying the
annual rate of inflation, the result achieved would be very
little different. If this case settles on the morning of the
Hearing for a figure of £19,000 or £20,000 the Client
and indeed I suspect the Solicitor, may well feel that
Counsel has proved to be right in thinking that the
original sum was inadequate.
In discussing the function of Counsel, relative to offers
of settlement, I would like to refer to an abuse which
appears to have grown up of recent time. This is
illustrated by a case which has been drawn to my
attention but in which I am totally unaware of the identity
of any of the parties involved. A substantial sum of
money was offered by an Insurer in settlement of a case
and in reply, the Claimant's Solicitor wrote as follows
"there are certain things which I would like to clear up in
advance regarding costs. Counsel have indicated that
before they advise on the settlement that fees for such
advice will have to be paid. Our professional fees will be
£2,000 and in addition to the ordinary outlay, there
would be a sum for both Counsel amounting to £210 for
advising on the settlement. Kindly confirm that these fees
will be paid".
Having regard to the amount of the settlement offered,
the fees suggested for Counsel represent in fact full Brief
Fees and I need hardly say that this is totally
unacceptable. It is disappointing however, to note that not
alone did the Solicitor apparently support the outrageous
suggestion but also associated himself by claiming his fee
as a condition to settlement.
May I issue a final word of warning. When and if the
limits of jurisdiction of the Circuit Court are increased
some of you may feel that the larger claims could not be
left to Junior Counsel but that Senior Counsel should be
involved. May I plead that no one should submit to this
temptation which will only exacerbate an already
extremely difficult situation.
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