Law: One man who is propping up the Bar
The new chairman of the Bar Council is a tough-talking humanist with traditional legal values
Cahal Milmo is the chief reporter of The Independent and has been with the paper since 2000. He was born in London and previously worked at the Press Association news agency. He has reported on assignment at home and abroad, including Rwanda, Sudan and Burkina Faso, the phone hacking scandal and the London Olympics. In his spare time he is a keen runner and cyclist, and keeps an allotment.
Thursday 17 December 1998
Unlike some previous Bar chairmen, Brennan, 56, will not waste months thinking about what he is going to do. He already has a timetable, starting early next year with the committee stage of the Access to Justice Bill. "I have really prepared myself," he explains, "because this Government is intent on the most radical change in the legal system for 50 years."
When Brennan was elected as vice-chairman, after just two years on the Bar Council, this was interpreted as a snub to his opponent, Jonathan Hirst QC, who had served for 10 years. But what the Bar needs now, it was decreed, is a leader far removed from the stereotype of the out-of- touch, upper-class silk. Hirst - as an Old Etonian, and son of a previous Bar Council chairman, did not fit the bill.
Thus, Heather Hallett QC, the first woman to chair the Bar Council, is succeeded next month by Brennan, who, like Hallett, went to grammar school, and grew up in Bradford (where his father ran a pub). His career at the Bar, representing victims of personal injury and medical negligence, has earned him a reputation that is practically unsurpassed. Brennan's main cases include acting for the timpanist in a Hong Kong orchestra last year, in a claim relating to organo-phosphates, and he also helped to secure damages of pounds 3.9m last month for a 17-year-old girl who requires 24-hour care since being deprived of oxygen at birth.
He has also been instructed to act in cases relating to disasters, such as the Herald of Free Enterprise, the Marchioness, and the Manchester air crash. The most challenging, he says, was "the one in which patients with haemophilia were given the HIV virus in plasma. Young people died through no fault of their own".
But, he says, this is not a depressing area of law in which to practise. "I am not a social worker; I'm a barrister. I must be objective. I try to reassure people that they are not to be anxious. I am there to do a professional job."
Until the Bar Council began to claim too much of his time, Brennan was closely involved with the tobacco litigation currently going through the courts - which is the first multi-party action undertaken on the basis of no win, no fee. This showed genuine commitment, since the solicitors and barristers involved in the case could face losses of pounds 3m between them if the action fails.
The solicitor leading the case, Martyn Day, knows Brennan well: "You just have to see him with a client. With some silks, the last time they were human was when they were kids. But he is really human, and when he presents a case, you're thinking to yourself: `Sock it to the bastards!'." Vigorous in court, especially in cross-examination, Brennan says he wanted to be an advocate since he was "a young lad". And he is eager to ensure that people from similar backgrounds can continue to become barristers.
"It would be a tragedy if we went back to the middle-class Bar of the past, but the cost of qualifying puts unreasonable pressure on people from average backgrounds. That isn't right."
He joined the Bar Council when the Major government started raising the issue of conditional fee arrangements (whereby lawyers get paid only if they win). "That affected personal injury work, and I became a spokesman on the subject."
Even with a new government in power, there are few areas where Brennan agrees with the Lord Chancellor (beyond a shared dislike of wigs). He considers Lord Irvine's suggestion that barristers are fat cats as "totally unjustified", and if you ask him whether this barrister-crammed Government is relatively friendly to the Bar, he splutters into his beer and asks: "Who have you been drinking with, my boy?"
But Geoff Hoon MP, the minister of state at the Lord Chancellor's department, who is also a barrister, has insisted that the Government's approach is not to ask, "will this harm the Bar?", so much as, "will this help more people?"
Brennan says he welcomes the extension of advocacy rights to solicitors, which is proposed under the forthcoming Access to Justice Bill, but only if they are competent. "Otherwise, the public will get poor representation, and the courts will be log-jammed because of the incompetence, and the legal system will fall into disrepute."
To stem the loss of work to solicitor advocates, Brennan wants chambers to introduce "kite-marks" guaranteeing efficiency and good service. This would enable them to contract directly for cases with the body which will replace the Legal Aid Board, rather than rely on solicitors to farm out the work. He is also likely to reconsider the issue of direct access to the Bar, cutting out the solicitor's traditional role of intermediary, in cases involving companies and other professions.
Earlier this year, Brennan led the Bar Council's opposition to Lord Irvine's suggestion that legal aid should be granted only in cases assessed as having a 75 per cent chance of success. In making his case, Brennan introduced one of his own clients, Sally Murphy, who was awarded more than pounds 2m because her daughter, deprived of oxygen at birth, suffers from cerebral palsy. Her legally aided case, explained Brennan, would never have passed the 75 per cent threshold, and, with both Murphy and her partner unemployed, the case could not otherwise have come to court.
Earlier this year he also demonstrated an internationalist outlook - his wife is Spanish - by urging lawyers across Europe to lobby for damages to be harmonised across the European Union. At present, losing an eye is worth about pounds 5,000 in Portugal, but pounds 20,000 in Britain.
To make the Bar more relevant to the community, he hopes to expand pro bono work, and develop the civic education programmes with schools to deal with human rights. A book on this subject, which was put together by the English Bar, was launched in several languages by the United Nations last week.
He is conscious that the Bar should not merely oppose change. On the question of legal aid, the Bar put forward its own proposals, such as taking action against lawyers who persistently offer over-optimistic advice, and continuous assessment for legally aided cases. To support their case, Brennan brought in specialists to evaluate the potential impact of conditional fee arrangements on the Bar; some fear that the best barristers, finding themselves in great demand, will take on only the cases they know that they can win. And he also invited actuaries to examine the ultimate cost to consumers. Legal fees, they reported, could amount to more than a quarter of a client's damages award in these cases.
Overall, he says, putting his beer to one side, the Bar's response to change has to be seen to be reasoned, well organised, and in the public interest. If the Bar has to change its professional structure, it will - but not at the cost of its independence and integrity. "This country has traditionally relied on a strong, independent Bar. You can have an advocate for the most horrible crime, and for unpopular causes. The Bar has given representation fearlessly, regardless of the origins of the client, the power of the court, or the influence of outsiders, such as the government. That should not be lost amid changes that are economically driven."
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