Public Access

Once, a fringe, micro-aspect of work at the Bar, is Public Access to become the way forward to see the Bar through the 21st century?

Readers of the blog will know my friend Matthew Shardlake. Matthew was a tolerably successful advocate, and  ‘well connected’  for his time. Is this why he is one of the rare survivors from the 16th century? He was, of course, the fictional barrister created by C J Sansom for his Shardlake series ‘Dissolution’, ‘Dark Fire’, ‘Sovereign’, ‘Revelation’ and ‘Heartstone’, published between 2003 and 2010. Sansom’s novels chart the fate of the Tudor barrister as he played out his part in the sensational reformative events of the time.

My interest in Matthew Shardlake is less for his historical role, but more for his current relevance. It seems, in the times of Henry V111, that barristers operated a very effective form of public access. Indeed the work of the ‘solicitor’ was confined to that of a clerk – preparing cases for the barrister who would advocate in court. The difference was that the barrister received his (for in the C16 barristers were male) instructions from the client, and the barrister advised the retention of a solicitor or clerk to obtain depositions and liaise with the court.

Perhaps a sign of hard times, with economic recession and job insecurity, members of the public are questioning the cost of solicitors’ services, and why they really need them. With ever increasing levels of literacy and huge assistance from the internet, many clients want to tackle the basic tasks themselves rather than pay for a solicitor’s silver-plated service. Some appear as litigants in person; but others are becoming ‘supported litigants’, who retain a barrister for the tasks of advising them and advocating in court.

The change comes at a clear cost to the legal profession. Many solicitors are feeling the rub – just as the Bar felt when solicitors sought and obtained higher rights of audience. Neither is the Bar immune to collateral stress from the fact that non-legal clients are preparing their own case.

Well managed, the advent of public access need not be hard for the Bar, and may be part of its salvation. For years, barristers have had to await a solicitor’s instruction, courting them and managing their preferences. But with direct public access, clients have the chance to check out a chosen barrister and instruct them directly. They receive early, cost-effective advice and keep control over the purse strings. The professional roles are reversed – now the chosen barrister nominates a solicitor to undertake only those tasks that are beyond the client.

So, we return, as inevitably we would, to the days of Matthew Shardlake. The court may not be the ‘Court of Common Pleas’ – now more probably a county or family court in the provinces – but the re-ascendance of the Bar is possible.

More and more clients are going to seek early and less-costly contact with the barrister of their choice. They will have read about them in the press, met them in their communities, checked out their profile on a dizzy dozen of web sites and want to hear how their case looks to the practitioner who is going to advocate it. Wise lay client – lucky Bar.

Having led the way in public access to the Bar by piloting for the Bar Council for England and Wales the first two schemes under ‘Bar Direct’ in 1999, the blogger has had a regular ongoing relationship with direct access.

Mediation Information and Assessment Meetings

Has the number of private law children or financial remedy court cases dropped over the last year?

On 6 April 2011 rules came into force requiring divorcing couples to attend an information meeting  about mediation and other alternatives to court action -before issuing financial remedy or private law children proceedings.

To what extent have they been successful in diverting family cases away from the courts? Well, the picture emerging appears unclear.

Resolution commissioned a survey, which found that:

  • Court staff have not regarded it as mandatory that a party issuing an application should show evidence of having attended a MIAM. Only 56% of respondents to the survey said that courts asked about this when they applied to issue. One snapshot showed that in the Principal Registry in London, only 20% of applications were accompanied by evidence of attendance at a MIAM.
  • Rule 3.2 states that judges “must consider, at every stage in proceedings, whether alternative dispute resolution is appropriate”. Yet 78% of respondents said that their local courts hadn’t asked about this.
  • 20%  of solicitors who responded had only referred 0-10 % of their clients to a MIAM, whilst 30%  said they had referred the majority of their clients (91-100%) to a MIAM.
  • 89% of respondents reported that 0- 10% of their clients had self-referred to a MIAM.
  • It appears that courts in different regions are interpreting the rules in different ways.

Respondents’ feelings about MIAMs were clearly mixed. Some reported a higher level of mediation as a result of increased awareness. Many made the point that mediator or collaborative lawyers spot the cases needing a judge and consider a MIAM to be a fruitless additional hurdle. Others spoke of concerns about the cost of  a MIAM.

The Ministry of Justice has seen an increase in MIAMs compared with assessment meetings. Judge’s statistics are being checked to see if there is a decrease in applications coming before courts, and at what stage they are being compromised. In the Principal Registry, a 6 per cent drop in private law cases has been reported since April 2011.

The blogger has found MIAMs to be really useful on two levels. In some cases they have resolved all or some of the issues without the need for a court decision. In others they have helped to ease the adversarial nature of subsequent proceedings (especially in children cases), and softened the parties’ expectations of the court process.

Within a decade, the culture of family litigation is likely to change. MIAMs are starting to play a part in this. In almost every case there is something that can be agreed, and reaching some consensus oils the wheels for more collaboration between warring parties.

With thanks to Manches LLP and The Times Online

Sir Paul’s Campaign

“Save marriage”, says Sir Paul Coleridge, “from the destructive scourge” of divorce and family breakdown.

Baroness Butler-Sloss, Chief Rabbi Lord Jonathan Sacks, Baroness Deech and Baroness Shackleton have joined him in his quest. Iain Duncan Smith also chips in from the government bench, that ‘more should be done’ to prevent family breakdown.

At a time of rising divorce statistics it is understandable that concern should be expressed in such a visible way. Yes, children are better off with two loving and committed parents rather than a broken home and the principal or sole care of just one. But how, if at all, will Sir Paul’s campaign change the picture?

As a society, should we be pressing married parents of children to stay together? Do we make getting divorced a more difficult task? Should we be advocating marriage as the cornerstone of family life? What do we say to the childless spouses who contemplate separation, or will they have separate rules?

More importantly, is it right that those with a loving, fulfilling and solid marriage should be setting the bar for those who have not been so blessed? Or does the argument revolve around the ‘personal discipline’ of laying in beds we ourselves have made?

The problem probably rests, not with a social culture, but the simple fact that often the natural instinct of many men and women is one of serial monogamy. It is said that this arises from genetics rather than culture: more the consequence of ‘being’ rather than the effect of ‘Facebook’.

As a ‘family lawyer’ I will not be joining  Sir Paul’s team. Whilst my professional experience brings me  into contact with spouses whose relationship has become dysfunctional, I frequently meet people who should never have married each other, or even anyone at all. Some spouses simply contaminate their relationships, and the presence of children cannot justify maintaining the union. On the other hand, second, or even subsequent marriages or unmarried relationships can be extraordinarily successful and productive, both for the spouses and their children.

For my part, I have less regard for the social philosopher – than for those who realistically address the frail human condition. To encourage pre-separation counselling is one thing, but to opine on the sanctity or priority of marriage is quite another. Some cultures have tried it, and they end up stoning their perpetrators.

Perhaps we should be taking the myth out of marriage. Rather than encouraging  ‘the wedding-dress romance’, we should counsel a realistic view of marriage from the start. Better to discourage than to espouse. Healthier to emphasise the discipline, restraint and sacrifice that marriage may require, than to emblazon it as ‘the Gold Standard’.