Bar Focus | Wales: rise of innovative sets

It is a difficult time for businesses generally and the business of law is no different. In Wales there are serious concerns about the restructuring of traditional common law areas of work, particularly those in which public funding of individuals’ legal cases remains crucial, such as criminal and family/childcare practice. The demise of Temple Chambers in Cardiff this year is testament to the upheaval within the professions that these changes cause; the need for the Bar to respond quickly to changing market conditions and also the need to approach legal practice very much as both profession and business. Lines of work which frankly do not pay will have to be abandoned in favour of those which do.

Outside the effects on the profession itself and its members, we all share real concerns about the effects on access to justice for those of modest and limited means. This is particularly important, of course, in areas of relatively low economic activity such ?as Wales.

Thus while Wales now has its own mercantile and administrative courts in the High Court, there are some real difficulties in people being able to bring their cases because of lack of funding. While, partly for reasons explained later to do with the increased devolution of power and Welsh government activity, we may anticipate growth in judicial review proceedings, there are limits to how fast this will develop because of these funding difficulties. In the case of employment tribunals, for example, this is increased by the imposition of tribunal fees for the first time. We have not yet observed much of the feared overwhelming of the courts and tribunals systems’ resources with the time needed for litigants in person to prepare and present their cases, but we shall await events.

Generally ? and despite these concerns ? the Bar in Wales continues to do what it always has done, everything it can to serve its community and individual clients with flair, commitment and enthusiasm. And there are other real causes for optimism in the legal market in Wales.

Cause for optimism

First, the on-going developments in the devolution settlement. With the National Assembly now in possession of full legislative powers in the devolved areas which include those most important to its citizens’ lives (education, health, local government, transport ), this gives rise to obvious opportunities for practice development in the fields of public law.

Welsh lawyers have the potential for a competitive advantage from the fact that practitioners based in Wales are well placed to understand fully the way that the law in Wales ? emanating from both Westminster and Cardiff ? works and regulates the activities of citizens, businesses and governmental agencies in Wales. This can only increase as time goes on.

Second, the principal civil sets report general increases in levels of work, which ?is a pleasant surprise in times of austerity and recession.

Fast track work generally seems to be on the rise as does work from local authorities. Significant growth has been seen in some areas of personal injury litigation, particularly in the lower value or turnover work areas.

The use of CFAs – under some pressure in PI cases of course – is increasing in commercial fields and again this is perhaps a positive sign lending itself to a broadening of the client base in those areas and attractive to corporate clients in times of particular business costs pressure.

In the public law fields (for example planning and highways), inquiry work and other development-related cases are also on the rise and this is set to increase with the forthcoming Planning Bill for Wales which will provide for further significant differences between Welsh and English law in this field. The business-friendly initiatives of Welsh Government, including the Enterprise Zone for Cardiff and the proposed City Regions for South Wales (Cardiff, Valleys, Newport and Swansea), together with Community Infrastructure Levy are expected to help promote business activity and the need for the associated legal services.

Use of ADR has witnessed a significant surge over the past 18 months across the board, except perhaps in PI where ADR has found limited acceptance to date. In that field the joint settlement meeting remains ever popular in higher value cases ? as is to be expected perhaps. Mediation and arbitration are particularly popular, and on the increase in the fields of commercial law and property.

Cost-conscious clients

The recession may lead to a continued refocusing of work for the Bar in this area compared with traditional advisory and court work, with clients increasingly ?costs-aware.

There is no perception of any reduction in the numbers of litigants overall. Chambers have noticed an increase in the number of individual claimants calling to ask about direct access services and again for those able to offer those services this may be a cause of optimism as to the growing market in that area. There are of course issues which arise for the Bar in (even gently) competing with its own client solicitors. Nevertheless, this can be seen as a good sign and can also be taken as such together with the appreciation that the size of chambers continues to increase. The largest sets in Cardiff now exceed 50 members, a doubling of typical size since the 1980s. That mere fact suggests that there is no reason to be pessimistic as to the future success of the Bar and we in Wales remain in good heart ready to react quickly to changing conditions to provide the expert advisory, forensic and mediatory legal services that people and businesses need, want and are prepared to pay for.

For those practising at the criminal bar, Tom Crowther, head of Apex notes: “The criminal bar in Wales faces the same challenges as across the UK: falling income (Gordon Brown’s only public sector salary cut was 12.5 per cent for criminal defence, and more since), and the Bar Council’s ill-advised insistence on redistribution of income from larger cases that demand higher expertise towards smaller cases, intended to benefit junior practitioners but which has led to an influx of defence and prosecution HCAs (higher court advocates).”

Innovation

One of the biggest sea changes for the ?Welsh Bar is the number of specialist sets being established to future proof barristers and the provision of independent advocacy across all areas of practice. The words ‘adapt and thrive’ are integral to the success of the Bar now and in the future, although this does require clear leadership, investment and engagement in business development, ?a clear vision and outstanding, bespoke client services.

Civitas Law ? my set ? is one of those, specialising in civil and public law since its formation in 2007. It operates from Cardiff – but like many regional sets, has a strong presence and client market in its locality and nationwide (national in this sense as England and Wales).

Apex is another, set up around the same time. For Tom Crowther, “the chambers that have dealt most successfully with the changes are those that have embraced specialisation”.

The formation of Apex and Civitas Law – as the first specialist sets in their respective fields – both operate non-traditional business models, have determinedly low overheads and an emphasis on being fleet and ready to adapt. This is particularly useful in crime, where Apex has diversified from ‘pure’ crime into the regulatory and disciplinary field and now exports advocates across the UK. Civitas Law’s model and tailor-made client service, practitioner offerings and business networks has garnered the same return on investment as well as award-winning success with clients.

Most recently, Cathedral Chambers ? again in Cardiff – is the latest specialist set to have been established, promoting expertise in family law as a unique selling point. The more traditional full-service sets still exist and are adapting, with chambers across north and south Wales – but it’s a tough marketplace and only the most flexible, driven sets with strong leaders and equally strong, dynamic business plans will survive.

Growing the pie

The Welsh Bar is becoming more adept at growing the pie in terms of helping clients increase opportunities for growth. This includes offering training support, working with clients and industry organisations to deliver networking opportunities and profile raising events and working collaboratively on consultations. It may also involve creating bespoke opportunities behind the scenes, working with law firms for growth in Wales. Practitioners aren’t simply sitting back and waiting for the work to come in – or skipping over the bridge to England.

Business-minded chambers in Wales – which require a committed, engaged and forward-thinking membership of barristers, along with qualified and innovative management and clerks – are streamlining back office functions to enable not only a more modern and future-proof business model but also a more flexible one. Civitas Law and Apex Chambers have hot-desking facilities, fully remote access to chambers’ servers and diaries, paperless office and front-loaded client facilities.

Regional sets have been held out as benchmarks for the future of the Bar – including Wales. The ability to adapt and innovate may well be due to the historic challenge to raise the profile of the Bar outside of London but it’s no longer a real challenge for sets in Wales. The battle for the Welsh Bar is to attract leadership skills to help drive innovation and collaboration for the good of the wider legal sector, as well as sell the quality of life associated with Bar in Wales. My chambers, for instance, has proved that in a national arena, having the right specialists and client care is invaluable for attracting high value work from clients in England and Wales – although getting the message out requires skilled in-house marketing management and a collaborative business development strategy to sell the brand. This isn’t simply a challenge for the Welsh Bar but all those taking a client-focused approach to structuring their businesses to meet the needs of the legal marketplace.Tom Crowther believes the Bar “is overmanned and under-funded”, with too many chambers assuming that “to sail ‘steady as she goes’ will lead inevitably back into the sunshine”. I agree.

Barristers in Wales, and the rest of the UK, need to be more than expert practitioners. They need to be business-minded and understand the markets they are in – or employ people who do to develop lasting opportunities for Welsh barristers’ chambers.