What an archaic system: are two Senior Counsels necessary?

We've a case coming up in the High Court and our solicitor has unequivocally told us we will have to pay for two Senior Counsels because, the line is, if one is caught up in another case we will need a replacement SC. We will also need a JC, so three barristers in total. Further, for some reason this extra SC will not be covered when costs are awarded in our favour.

In terms of denuding people of their choice, this is like a hotel we booked years ago: we chose a good hotel and paid for it through an online computer system. However, on the morning we arrived they claimed they were full up and transferred us to another hotel not of our choosing (which, coincidentally, was one of their less in demand hotels). It would be nice if, when we paid for the service of a SC, we would be guaranteed the service for which we pay. It seems not only are we not guaranteed that but we must pay for two barristers ar eagla na heagla. The cynic in me wonders do "in demand" SCs have a sideline of taking on more cases than they have time for and then passing you over to some less "in demand" barrister and making a profit for essentially doing nothing but taking away a person's choice?

And just how well "briefed" could a SC possibly be to do justice to your case if he's the legal equivalent of lastminute.com? How much notice do we get if the SC we've chosen bails on us?

hullaballoo

No, it never has been and never will be a reason for briefing two silks that one might be unavailable due to other commitments. The only reason for two SCs to be briefed is that the case is complex enough to warrant it and in that case, you would be applying for the costs of all instructed barristers, if you are successful in your case. The judge may or may not deem it to have been necessary to instruct two SCs but that's another matter and you should seek further independent legal advice should that become an issue. It might be the case that you have misunderstood what you are being told. This is common when dealing with lawyers because we have somewhat of a tendency assume a greater level of comprehension of what is going on than is in actual fact the case.

To address your last point, barristers, and particularly SCs are well-accustomed to reading into a case on very short notice. It is their job to be fully prepared for court. It is astounding how quickly some SCs can totally absorb every facet of a case in a matter of a few hours.

I don't think hotels are an appropriate comparator for barristers so I will not address that.

NUTLEY BOY

Fuaranach wrote: »

We've a case coming up in the High Court and our solicitor has unequivocally told us we will have to pay for two Senior Counsels because, the line is, if one is caught up in another case we will need a replacement SC. We will also need a JC, so three barristers in total. Further, for some reason this extra SC will not be covered when costs are awarded in our favour.

In terms of denuding people of their choice, this is like a hotel we booked years ago: we chose a good hotel and paid for it through an online computer system. However, on the morning we arrived they claimed they were full up and transferred us to another hotel not of our choosing (which, coincidentally, was one of their less in demand hotels). It would be nice if, when we paid for the service of a SC, we would be guaranteed the service for which we pay. It seems not only are we not guaranteed that but we must pay for two barristers ar eagla na heagla. The cynic in me wonders do "in demand" SCs have a sideline of taking on more cases than they have time for and then passing you over to some less "in demand" barrister and making a profit for essentially doing nothing but taking away a person's choice?

And just how well "briefed" could a SC possibly be to do justice to your case if he's the legal equivalent of lastminute.com? How much notice do we get if the SC we've chosen bails on us?

This so called "two senior rule" was all the rage when we used juries for most civil cases.

There is no automatic reason to brief two senior counsel unless it is a situation exactly like hullaballoo describes.

I would challenge the solicitor to explain why they want to brief two seniors and tell them now before the briefs go out that you are not prepared to pay for the second senior. You are the client. It is your money.

The solicitor's quite correct observation that you will not recover the costs of a second senior (on a party and party basis) almost suggests that he knows that two seniors are not really required. The "availability" argument is a bit of nonsense and sounds like a handy way to pick your pocket.

I saw a few cases where the introduction of a second senior was actually a bloody nuisance. I dealt with a few cases where both a senior and a junior were briefed and then bailed as they were not available at the actual trial date so we briefed very competent juniors ( 1 per case !!!) instead and they did a far better job in the end in each of those cases.

NUTLEY BOY

hullaballoo wrote: »

I don't think hotels are an appropriate comparator for barristers so I will not address that.

I thought that some barristers were positively Fawlty at times

The_Minister

Sometimes two seniors are required, it depends on the case - for instance, in the Bailey case, there were at least four barristers on each side due to the amount and complexity of material, and the numerous points of law. Also, realistically, I'm sure that not everyone could be there everyday, all the time for three months.

As for why a second Senior may be briefed due to non-availability...it's unusual, but not unheard of.

The court's don't run on a defined scheduling system - the vast majority of cases settle so it would be incredibly inefficient and wasteful to do so.

Because of this, generally, cases are called on in a list for a certain number of days, and then assigned to judges for hearing - as each case is settled or determined, the list shrinks and new cases are heard.

This means that if you have a five day case, you don't know :
1. What day it will start
2. If it will run the full five days or settle (more likely settle)
3. If it will only last five days - sometimes people have an outbreak of sense and issues are shortened, other times things explode.

So it's very often not possible to set aside a defined period of time, because you'd have to clear a few days on each side.