Commercial Court urges more use of junior advocates

Foxton: Costs are a good issue for junior advocates to argue

The Commercial Court and COMBAR are looking at ways to ensure that junior advocates can get more time on their feet, encouraging solicitors and clients to consider their use on discrete issues.

Mr Justice Foxton told last month’s meeting of the Commercial Court users group that he hoped judicial support for more opportunities for juniors would “be of interest to parties and their legal representatives, when considering whether there are parts of cases which might be argued by junior advocates and how judges might react to the decision to divide up the advocacy in this way”.

The judges have expressed their concerns at the impact of Covid-19 on junior advocates; in September, Mrs Justice Cockerill – the judge in charge of the Commercial Court – said young solicitors and barristers were missing out on a “huge amount” of training because of virtual hearings.

According to the minutes of the users meeting, Foxton J observed that many of the opportunities for junior advocacy were no longer as prevalent as they once were, and the court was considering ways to address that.

One initiative underway since the start of the year is the pro bono scheme with the London Circuit Commercial Court, set up by HHJ Pelling QC in conjunction with COMBAR and Advocate.

The scheme is designed to provide assistance from junior barristers at no cost to litigants, for applications of one day or less. If the pilot is a success, it could be extended to the Commercial Court.

Foxton J also reported that the commercial judges were “pleased to see that junior advocates are increasingly being asked to make oral submissions on discrete parts of applications or issues arising at trials, as well as dealing with some of the shorter witnesses at trials”.

He said that judges felt that a number of the issues which arose before the court, particularly at the interlocutory stages, could be effectively dealt with by junior advocates, who have very often had close involvement with the pre-hearing preparations for those parts of the case.

These included issues in relation to the disclosure review document and costs budget at the case and costs management conference; detailed disclosure issues; and disputes about the provision of further information.

“Foxton J noted that submissions on questions of costs (and in particular the summary assessment of costs or payments on account) are also frequently argued very effectively by junior advocates, as are issues of alternative service or service out in many applications.”

The court has also recently introduced a ‘Pupils in Court’ scheme, again with COMBAR’s support, in response to the lack of live hearings due to Covid. It allows pupils to sit in with judges on live hearings, after which judges explain to the pupils (13 have taken part so far) which advocacy they found effective.

COMBAR chair Sonia Tolaney QC said the feedback from pupils has been “fantastic”, adding that the association has formed a committee to address opportunities for junior advocacy.

The minutes said: “Overall, juniors’ experience of remote hearings has been positive; they don’t feel hearings have materially decreased advocacy opportunities (if anything, the opposite). There are, however, some concerns about losing out on training, as it is a different experience for juniors to be on a remote hearing and often not in the same room as their leaders.

“Ms Tolaney QC agreed with Foxton J’s observations about the general lack of opportunity for junior advocacy at the commercial bar. It was noted that, because the Commercial Court Guide currently encourages attendance by the leader, opportunities for juniors aren’t necessarily granted. One way to address that might be to make that clearer in the guide.”

Meanwhile, the group heard that, despite Covid, the volume of new cases in the Commercial Court was up 6.6% to 860 in the year to 30 September 2020.

International cases – those with an international subject matter or at least one overseas party – continue to predominate, representing 75% of cases issued.

The number of hearings listed was up 2.5% to 1,476, of which 1,013 were effective. The court actually held marginally more hearings since the first lockdown than it did in the same period last year. All but five of them were held remotely.

The settlement rate was up, at 66% over the year compared with 63.4% previously, but 69% in the Covid period.

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