'I don't know how you do it, ' they say from time to time, writes Kim Franklin. It's not the usual business of running the home, children and ex-husband while squeezing in the day job that impresses them so. It's the ability, apparently, to fight a case, tooth and nail, against another barrister, whom, it turns out, you know rather well, even to the point of sharing chambers with them.
If you explain that this does happen from time to time, and that sometimes the judge or arbitrator is from the same chambers too, they look completely ummoxed.
So let's get a few things straight here:
barristers are self-employed, independent individuals.
While they operate collectively to share the expenses of chambers, they do not share the profits and are not in partnership;
the bar tends to attract ambitious, idiosyncratic individuals who are on a personal mission to demonstrate their abilities to themselves, their peers and the public;
barristers' chambers are traditionally run on a shoestring budget. With a few notable exceptions there is little in the way of corporate identity;
just because barristers are in chambers together does not mean, necessarily, that they like each other; and barristers who have practised in chambers together for any length of time, will, however, be wise to any of their fellow members' foibles.
If you add these elements together you can see how landing a case against a fellow member of chambers is an ideal opportunity to take advantage of any insider knowledge you may have to give the other side a good going over and score a personal coup. If the judge is, coincidentally, a member of chambers, it just increases the pressure to do one's best.
Yet the misconception that barristers are in cahoots to short-change the unsuspecting punter, persists. Certainly Mr Smith felt short-changed in the case of Smith v Kvaerner Cementation Foundation Ltd (Judgment 21.03.06). He was seriously injured whilst travelling in Thailand as a passenger in a car owned by the defendant company. Both parties were represented at the trial by barristers from the same chambers. The judge was head of those chambers. The judge also pointed out that he had frequently worked for the defendants.
When Smith was unsuccessful in his claim, he complained to the defendants, his union, his MP, the solicitor, and bar pro bono groups that he had been the victim of an injustice. Ultimately Liberty took up his cause.
The Court of Appeal found that the system had indeed let him down. Not because the representatives and judge were from the same chambers. That did not give rise to any risk or appearance of bias. It was because of the judge's longstanding professional relationship with the defendants. Mr Smith had not been given a fair opportunity to waive his right to object to the judge trying his case.
Whether it was, in fact, the case, he was entitled to feel that he had been 'set up'.
Kim Franklin is a barrister and chartered arbitrator at Crown Office Chambers in London. Visit www.crownofficechambers. com