Barristers keen to break with their fogeyish image

The new Commercial Court in the High Court has hugely reduced the amount of time it takes to process complex business cases. Case management is making for more speedy document exchange, so that disputes are brought to hearing much earlier than previously, with a resultant reduction in costs, according to the chairman of the Bar Council, Mr Hugh Mohan SC.

He hopes that lengthy High Court hearings that come many years after the events at the core of a dispute are a thing of the past.

Commercial cases totalling hundreds of millions of euro are being processed by the courts every year. Personal injury cases are excluded.

Mr Mohan says barristers as a profession are fully engaged with the transformation that has occurred in the commercial life of the Republic in the past decade. The image of the profession as one locked in traditions and mindsets that belong in the distant past is an incorrect one, he says.

The Commercial Court uses email for the exchange, service and lodgement of documentation. The court's premises on Bowe Street, Dublin, has 17-inch flat touchscreen monitors for document and evidence dissemination, and can handle the presentation of evidence on CD-ROM.

From its opening last January up to mid-August, the court received 13 cases with more than €1 million at issue. Cases are being processed through the system in weeks rather than years.

"Big commercial cases are now being fast-tracked, and barristers are fully engaged in this," says Mr Mohan. "Because the amount of time involved is being reduced, then costs are also being reduced. In law, as we all know, time is money."

The Bar Council is behind a recent development on business disputes that is independent of the courts and aimed at encouraging more settlements by arbitration and mediation.

In cases involving amounts of up to €10,000, parties can avail of this service, avoiding the sort of costs that arise in the courts.

It is a process that can allow parties to settle their differences without destroying their business relationship, says Mr Mohan.

The Bar has trained a significant number of members to act as mediators, providing a new source of employment for its middle-ranking members.

"It is a good development, insofar as younger members looking for work are concerned," the Bar Council chairman said.

The barristers' clients, for their part, get a service that involves reduced costs.

Another development of benefit to business is direct access to barristers for professionals, he says. Anyone who is a member of a regulated professional body can now contact a barrister directly to seek a service, rather than having to go through a solicitor.

This applies only to non-contentious cases - that is, where there is no "other side" in a dispute but a person or a company wants a legal opinion on an issue.

Mr Mohan is strongly of the view that there should be no change to the structure whereby barristers act as sole traders.

"The profession is very competitive, and that is good for the consumer," he says. "If the sole trader criterion was changed, I think that would be very anti-competitive."

If that happened, the top barristers in the various specialist areas would be employed by a small number of top solicitors' firms and what would emerge would in effect be a cartel, he says.

There is great merit in the practice whereby people who find themselves in trouble can go to their local solicitor, no matter where they live, and that solicitor can engage a top barrister in Dublin, Mr Mohan argues.

There are 1,500 barristers operating, of whom 1,250 are juniors - of which juniors almost half are women. Most of these juniors are not earning large amounts of money.

Barristers come from all walks of life. Many have worked as gardaí, civil servants, journalists, engineers, etc before being called to the bar, Mr Mohan says. The public image of the barrister as an overpaid male whose parents were wealthy and who went to a top fee-paying school is unfair and incorrect.

He criticises the recent Legal Eagles documentary series on RTÉ, saying that it took the easy option of reinforcing prejudices. "It was not a good representation of how the system operates. It was a shame," he says.

He says the programme misrepresented the amounts that barristers earn from settling cases. In personal injuries cases settled out of court, says Mr Mohan, the barristers get 1 to 1.5 per cent of the settlement - with the money coming from the losing party and not coming out of the settlement.

Mr Mohan would not deny that sometimes barristers' political allegiance can be a factor in relation to members being assigned certain jobs, but he said this was always a secondary consideration.

He says if the Competition Authority's work in relation to barristers - it is one of the professions now under the Authority's microscope - comes up with legitimate concerns, then the Bar will have to deal with them. "What we do has to be pro-consumer. We are not saying we are against all change. We have fully engaged with the Competition Authority."