Through dozens of interviews with barristers conducted by the Who’s Who Legal research team in the latter part of 2016, we were able to produce our most detailed examination of the UK Bar yet. On the back of this, a number of interesting trends and observations were noted by the team. The one topic on nearly everyone’s lips was Brexit. The only thing interviewees seemed sure of was that, following last summer’s referendum, uncertainty about the future abounds. Other trends were noted from speaking to counsel across a range of practice areas, and some of these observations are discussed below. For all the turmoil caused by Brexit, the Bar remains a thriving, changing and fascinating part of the legal landscape.
It was hardly surprising that the impact of Brexit loomed large in the feedback received from the market about trends and developments over the past year. The consensus view at the Bar, as elsewhere, was that there was little assurance surrounding the legal markets leading up to and following the Brexit vote. The lack of certainty among those we spoke to was initially caused by questions about which way the vote would go and, more recently, what form the planned exit from the European Union will take. “There is a degree of uncertainty as to what, if any, the impact of Brexit will be,” as one barrister put it.
More concrete yet differing views could be found in relation to the effect this lack of solid answers had, or likely would have had, on workflow. In areas such as tax, one barrister noted, “We can see a lot of uncertainty and fewer transactions. After a very busy couple of years, I would have to put that down to Brexit.” Similarly, a property barrister commented, “Brexit put deals on hold earlier in the year.” Nevertheless, in several areas, including real estate, interviewees were quick to point out that “quite a lot of work has arisen out of Brexit in light of the market uncertainty”, for reasons such as companies looking to get out of previously agreed contracts, while other practitioners commented that “fears that work would diminish as a result of Brexit have been unfounded as yet” and “Brexit doesn’t seem to have affected activity yet.”
An uptick in activity seems inevitable, however. Interviewees indicated that there was already a substantial market advising businesses on the potential consequences of the UK leaving the EU as well the various options available to them. This increase in advisory work seems likely to continue until well after the exact terms of Brexit negotiations are known.
Furthermore, the legal grey areas thrown up as a result of Brexit are unlikely to be resolved quickly. One barrister practising environmental law commented that it is “one of the areas most impacted by EU law, and we expect the way the environment is regulated to be a battleground for the next few years”. The Bar Council has already set up a Brexit working group which has identified several areas – including intellectual property, competition and insolvency and restructuring – where significant work will be needed in order to clarify the law. Disentangling and reinterpreting EU and UK law in the coming years is certainly unlikely to leave lawyers at a loose end. Indeed, the January 2017 Supreme Court decision in R (Miller) v Secretary of State for Exiting the European Union, concerning the legality of triggering Article 50 without Parliamentary approval, has already shown how significant a role the Bar may play in the Brexit process.
Concerns about Brexit extend beyond the potential amount of work available. For practitioners with substantial European practices, the main worry was thus summed up by one source: “We won’t have rights of audience in the European Court in a couple of years’ time. Several people I know are seeking admission to the Irish Bar and other jurisdictions in order to retain their rights of audience.”
Overall, it appears that the precise effect of Brexit on the UK Bar is unlikely to be identified in the near future. Although this may make barristers’ lives more complicated, it will likely also make them busier.
The chair of the Bar, Chantal-Aimee Doerries QC, announced in the immediate aftermath of the Brexit vote, “I am confident that London will remain a leading centre for international dispute resolution.” An ever-increasing part of this dispute resolution appears to be occurring through out-of-court means such as mediation and arbitration. One barrister commented, “At the top end of the commercial Bar, there is a little less litigation and a little more arbitration, perhaps due to the increase in court fees.” Meanwhile, another practitioner stated, “London still seems to be an important hub for arbitration.” Indeed, it has even been posited that Brexit “may spark a rise in London-seated arbitrations”, according to a September 2016 report by James Rogers, Simon Goodall and Charles Golsong of Norton Rose Fulbright.
Meanwhile, mediators handling disputes in areas such as property and tax commented that “the numbers of mediations are going up and trials are disappearing”, largely due to the lower costs and high resolution rates (Centre for Effective Dispute Resolution figures show that 86 per cent of mediations ultimately achieve a settlement). For practitioners, though, the popularity of mediation as a potential solution to disputes has led to a “very crowded marketplace” resulting in “a number of mediators offering discounted rates”.
Beyond arbitration and mediation, settlement is also an increasingly attractive option in a number of sectors. One barrister told us that, in the commercial arena, “there is also more of an emphasis with trying to grapple with cases beforehand and settle early”, while in areas such as employment “there is quite a bit of settlement, perhaps because the stakes are pretty high when getting towards court”.
Alternative dispute resolution looks set to be an increasingly attractive option for parties in disputes in the coming years. Undoubtedly, the roles of barristers as counsel, as well as mediators and arbitrators, will adjust to meet this demand.
The demands placed on barristers are ever-changing, as the number and types of cases ebb and flow. For instance, respondents were keen to point out the quantity of cross-border and international work that barristers are now handling. Corporate tax is one area where this trend is particularly obvious, with one interviewee commenting on “a big increase in the number of cross-border tax disputes going either to domestic courts or arbitration” – perhaps because, as another put it, “tax administrations all over the world are looking for revenue wherever they can find it”. Meanwhile, in aviation, one silk reported, “Cross-border work is becoming so wide, with human rights claims and group action.”
Some areas of law are not thriving, however. “There has been a very steady downward trend in defamation cases for about 10 years,” reported one counsel, while another noted, “There is a very limited amount of formal insolvency while mid-market straight insolvency is absolutely dead.” In both these areas, new legal approaches have arisen in their place, with privacy claims increasingly replacing defamation litigation; meanwhile, informal and big-ticket insolvency work fills the gap created by the dearth of formal and mid-market work. At the same time, government changes to employment law have resulted in, according to one practitioner, “the bulk of work dropping away” in the area, albeit mostly in low-value and low-merit cases.
The parties involved in litigation are changing as well. For instance, one arbitration lawyer told us that “Asian parties are increasingly being seen involved in disputes” while in civil fraud some barristers reported a reduction in CIS-related work, with cases involving Chinese and Middle Eastern parties replacing them. Also in this area, offshore cases are becoming prevalent – as one QC reports, “People in my chambers are spending a lot more time offshore; it’s a pleasant surprise when there’s an English case.”
It seems a somewhat trite conclusion to say that the UK Bar will face major challenges in the coming year – this always seems to be the case. However, the nature of the issues that potentially have to be faced are all the more concerning because they are still, to a large extent, unknown. Although some clarity was at last provided by Theresa May in her January 2017 speech, outlining the UK’s approach to Brexit negotiations, the next year will surely give us a better idea of what to expect. As such, the extent of the process and the substantial legal problems thereby created will surely make for a challenging, but very interesting, year for the Bar.
In this chapter, we recognise 70 leading individuals active as counsel or arbitrator in international commercial and investment treaty arbitration.
We recommend 32 barristers for their expertise in aviation and travel law. In aviation this includes corporate and consumer issues including financing and insurance, air disasters, and group litigation. In travel, barristers’ specialisms include personal injury and accidents abroad, including cases concerning choice of law and issues of jurisdiction.
We highlight 82 individuals for their outstanding banking and finance practices. Each has a proven track record of advising and representing major financial institutions regarding both regulatory and transactional disputes. Below we identify the most highly regarded practitioners.
We list 71 barristers in this chapter as the foremost civil fraud experts across all sectors, with expertise handling freezing and search orders, asset tracing and injunctive relief. Below we highlight some of the standout silks and juniors working in the pursuit and defence of civil fraud claims.
Our Company and Partnership listings comprise 37 top barristers, both silks and juniors, with many decades of experience between them. Barristers from three destination sets in the area, Serle Court, 4 Stone Buildings and Erskine Chambers, make up more than half of the barristers listed this year.
We recognise 90 individuals for their outstanding competition law practices. Each nominee has a proven track record representing clients before the relevant authorities and courts, including the Competition and Markets Authority (CMA), the Competition Appeal Tribunal (CAT) and the European Commission.
Construction is a large, competitive and well-defined practice at the commercial Bar with a commensurately high number of individuals recognised as leading names. Indeed it is the second largest chapter in this edition. All barristers featured have a proven track record in domestic cases heard before the High Court and Court of Appeal, or in institutional and ad hoc international arbitrations as either counsel or as arbitrator, including those who now only act as arbitrator. A total of 83 individuals are recognised.
In this year’s edition, 26 leading barristers for are recommended for their experience and expertise advising domestic and multinational companies on the full range of taxation issues.
We recognise 45 practitioners are recognised for their expertise in criminal fraud, including white-collar crime, money laundering, corruption and regulatory and compliance matters. Below, we select the leading chambers and barristers working in this highly specialised area of the Bar.
A new section in this year’s edition, the defamation and privacy chapter focuses on barristers with expertise either assisting clients, who are often high-profile individuals, with obtaining damages or securing injunctions, or defending media entities, companies or individual defendants in relation to privacy or libel claims. We list 26 of the leading counsel in this area.
This chapter identifies 34 leading practitioners with a proven track record of representing major energy clients in disputes concerning the exploration, production, marketing and transportation of all types of energy including oil, gas, nuclear and renewables.
This chapter identifies 45 leading barristers who have a proven track record in providing environment representation and advice to clients in relation to regulation and compliance obligations, as well as strategic planning, and dispute resolution with extensive experience managing national and cross-border litigation. Below we highlight the most highly regarded individuals.
We recognise 29 advocates for their leading government contracts work, primarily handling EU and domestic procurement matters, as well as competition and commercial disputes relating to public projects.
We highlight 66 leading barristers for their stand
-out work handling contentious, contractual and regulatory matters for a range of professionals in the field, including insurance underwriters, reinsurers, intermediaries and corporate insureds.
In this chapter, 42 leading barristers are recognised for their prowess in intellectual property disputes. Each nominee has a proven track record represented clients in patent litigation, copyright and design rights issues, trademark infringements, passing off and matters relating to trade secrets.
We highlight 63 leading barristers for a range of international trade and commodities matters, representing clients before the Commercial Court and Court of Appeal, as well as the GAFTA, FOSFA and other commodities standard forms.
We highlight 25 leading barristers for their impressive work handling criminal and regulatory investigations, such as allegations of bribery, corruption and money laundering instigated by the Financial Conduct Authority (FCA) and the Serious Fraud Office (SFO).
The following 103 barristers are recommended for their expertise in labour and employment law, including discrimination, TUPE, people moves, human rights and civil liberties cases before the High Court, county courts, employment tribunals, the Employment Appeal Tribunal (EAT) and appellate courts.
Our media and entertainment section covers an array of high-profile and complex work. A substantial amount of work involves intellectual property issues involving prominent film, TV, music and publishing clients. Barristers issues involving defamation as well as general commercial litigation and privacy and data protection claims involving the media and entertainment sector.
In this chapter, we identify the leading commercial mediators at the Bar. The range of individuals featured includes part and full-time mediators, door tenants, and members of specialist mediation chambers with a strong track record in high-profile commercial disputes. We select 20 individuals.
The private client field is a core area of expertise at the bar with a number of specialist sets and individuals, making it one of the largest chapters in this edition. A total of 72 leading barristers are recognised by our research for their expertise in the areas of wills and succession planning, trusts and estates, residence and domicile, probate and charities. Below we highlight the most highly regarded practitioners in our research.
We highlight 25 leading barristers for their top-tier professional negligence work handling indemnity claims and liability disputes against individuals from the financial services sector, solicitors, accountants and other professionals.
In this chapter, Who’s Who Legal identifies 58 leading barristers active at the property bar. Each barrister listed has a proven track record representing landlords, tenants, commercial developers and multinational companies in the appropriate fora, including all civil courts, arbitral proceedings, expert determinations and mediations. As well as contentious work, some nominees may also offer transactional advice.
The following 63 Barristers are experts in a wide range of matters concerning insolvency and restructuring, including liquidations, bankruptcies, administrations and receiverships. The financial crisis and continued instability of the world economy has driven this area to the fore in the past decade – during which time many prominent cases have arisen from major corporate collapses, including the failures of Lehman Brothers, Northern Rock and the Icelandic banking sector. The leading sets in this area are predominantly commercial chancery specialists, and many of the individuals listed are also recognised experts in banking, company law and civil fraud.
We recognise 30 leading practitioners for their proficiency in sports law. All barristers featured excel in representing sporting individuals, teams, clubs, domestic and international sporting associations and regulatory bodies in disciplinary, contractual, regulatory and commercial disputes before the relevant authorities. Certain individuals will also have significant experience sitting on arbitral panels.
The following 29 barristers are chosen for their expertise and experience advising and representing regulators and operators before the High Court, Court of Appeal and the Competition Appeal Tribunal (CAT), covering a range of EU, public, competition, commercial and regulatory law matters.
The following 25 barristers’ chambers are recognised for their exceptional performances in our research. From large commercial sets with listings in multiple chapters to smaller specialists with an outstanding reputation in a single core practice area, we highlight the relative strengths of the Bar’s leading chambers.
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Nominees have been selected based upon comprehensive, independent survey work with both general counsel and private practice lawyers worldwide. Only specialists who have met independent international research criteria are listed.