A new era as barristers stump-up the funds for litigation … Traditional relationship with solicitors turned on its head … Bleak times prompt changed behaviour … Turf wars
BY now all the big bars have completed their annual silking rituals.
There were 15 new ones in NSW, 18 at Vic’s Bar and four in Queensland – with 11 scratchings by the Qld CJ.
The High Court bowing and scraping ceremony and associated feasting takes place on January 31. Some may soon wonder, “why did I do it, when life was rosier as a junior”?
We have thirty-seven new silken ones on the east coast competing for dwindling scraps of work. Senior people tell Justinian that in living memory never have times been so meagre.
Maybe the chief justice’s intercession with Qld bar’s independence was because she thought the market was not strong enough to support 14 newbies.
Well-placed sources in Melbourne and Sydney says few briefs are working five days a week, let alone seven, as was the case in the salad days of the 80s, 90s and 00s.
A growing number don’t have chambers and the current workload shows no sign of increasing.
However, barristers are nothing if not inventive. Bands of briefs now scour the newspapers and court websites on a daily basis with eyes peeled for opportunities. Maybe there are corporate and environmental cases or criminal prosecutions from which class actions or other civil proceedings can be further developed and, in many cases, the proofs of evidence have already been done by the crown.
Increasingly, litigation proposals with overview memoranda are being identified by barristers and pitched to funders complete with detailed budgets.
They keep control by placing the work with a supportive law firm to do the pigeon holing. In other words, the traditional relationship is being tipped on its head, with barristers looking at the available evidence and then briefing solicitors.
What the funders see coming through the door are well researched and factually supportive propositions.
There are now well-trod class action relationships between chambers and law shops, e.g. Castan Chambers and Maurice Blackburn. Similarly, Joan Rosanove Chambers with Slater & Gordon.
Even senior barristers are diversifying away from the usual cut and thrust of dragon slaying in court and joining public companies with a foot in the litigating funding business.
David Denton QC of Vic’s Bar, sees the development of barrister initiated funding models first-hand in his role on the advisory committee of JustKapital Ltd, run by ex-Corrs partner Phil Kapp.
JKL has raised about $45 million in equity and convertible notes and has a joint funding arrangement with the Chicago-based Longford Capital, which itself has raised over US$200m to fund cases in the US, Australia and New Zealand.
While law firms stole a march on some of the bar’s turf it is now barristers who are bringing new money into litigation in a desperate effort to kick-start an ailing trade.