The Gazette 1980

SEPTEMBER 1980

GAZETTE

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.

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.

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