Commercial Bar Roundtable

As the law and its application to business transactions becomes ever more specialist, the need for access to experts who will balance your immediate legal needs with a tested knowledge of how certain actions will affect your business in the long term, is more critical than ever.

The Commercial Bar in Northern Ireland was created to acknowledge and nurture emerging specialisms in areas as diverse as insolvency, administration; contract negotiations, procurement and employment, banking reform, planning and judicial review.

Discussing the legal issues affecting the business community in Northern Ireland today and how the Commercial Bar can provide assistance are Michael Humphreys QC, Stewart Beattie QC, Ronan Lavery QC, Jill Comerton BL and Jackie Simpson BL.

INSOLVENCY, ADMINISTRATION AND PROCUREMENT

Michael Humphreys QC

“The legal effect and impact of insolvency is the most prevalent issue facing the business community and individuals we have been representing in recent times. The real difficulty I see is that there is no clear pattern or trend in cases and outcomes to inform future advice. The only interpretation is that banks are making decisions on a case by case basis.

Ronan Lavery QC

“The recession has been very real for businesses here and the fear and concern apparent is that we have not quite hit the bottom yet. This is evidenced by the continued enforcement of personal guarantees by banks against individuals. What will quickly become fashionable will be voluntary bankruptcy and this will create real tension between banks, individuals and big organisations in terms of debtors.

“While it is working out, one case at a time, there will doubtless be a cumulative effect creating risks for business going forward. Contracts are coming under threat, employment is coming under threat and High court writs are simply a temporary panacea. In these instances the Commercial Bar experience is essential in predicting likely outcomes on a legal and commercial basis.”

Stewart Beattie QC

“Thankfully people are now bringing counsel in earlier, preferably at the start of an issue. It is a real regret when you are called in so late; it is the equivalent of being given the hose and asked to put out the fire. The instinct of good solicitors now is to utilise the referral bar earlier. In procurement cases for example, you have to hit the ground running. Often you have merely days to make a judgement call before you could be out of time or seriously prejudice your position.”

“Barristers are in a position to advise quickly – there is no such thing as a 40 hour week, or leaving the office at five o’clock.”

Jackie Simpson BL

“The area of procurement and protecting the wider aspect of your business as an SME is a sensitive subject. So many small businesses are dependent on public sector contracts; losing one on grounds they feel are dubious presents a real dilemma in terms of bringing an action in court.

“The question is - are they prepared to risk challenging a government department or agency and potentially risk future opportunities? This makes it imperative for us as legal advisors to see the whole picture and weigh up the greater commercial consequences of success or failure in pursuing a case.”

Jill Comerton BL

“That is why it is so important to see clients early and look for real world solutions to their commercial and legal problems. The enormous breadth of experience of having worked with and supported every level of business in every conceivable situation is what we can bring to even the smallest business in difficulty. It is much too late at the door of a court to make a decision that will affect the long term viability of your business and we fully understand the nuances of how to achieve the best outcome without jeopardising future business.

INTERNATIONALISATION OF LOCAL LEGAL PRACTICE

Michael Humphreys QC

“Aside from the natural tendency to look at the current financial downturn it is heartening to see how many local businesses are finding success in global marketplaces and we are finding more and more that our services are required to support them in international law. What most people do not realise is in over 50% of commercial cases in London, neither party is from that jurisdiction. International companies are electing to bring their cases to the UK because they trust the integrity of the judicial system.

“This internationalisation of legal practice represents a tremendous opportunity for Northern Ireland. Like London, we have a judiciary that is second to none; we have barristers known for the quality of their advocacy; yet bringing a case in Northern Ireland would be at a fraction of the cost. All of which points to the fact that we should be promoting Northern Ireland rather than London as a good place to bring complex international legal cases.”

Jackie Simpson BL

“In fact the leadership of our Commercial Judge has provided more innovation and structure than ever before and as a result, practice directions have been issued that ensure fast tracking and more effective case management.

“A classic example is the relatively new method of testing expert evidence in commercial cases, known as Hot Tubbing. This is where the expert witnesses on each side give evidence concurrently in a Judge-led discussion of the issues. It represents a further example of reducing the adversarial experience of court proceedings but the role of Counsel in advising and preparing the witnesses cannot be underestimated. The result is a robust exchange of opinion which is geared towards finding an equitable solution for both parties that will save court time and costs.”

Ronan Lavery QC

“If someone locally is selling into Singapore they can make a choice to operate under our law and litigation process when they are drafting contracts. So businesses should factor the Northern Ireland Bar into their international business dealings so that if things go wrong, they are not casting around in a foreign jurisdiction for legal representation.

Stewart Beattie QC

“We should also be asking the question - why would International businesses not look at Northern Ireland as a venue for dispute resolution? If the changes being lobbied for in Corporation taxation came into statute, undoubtedly we would see an increase in name-plating with more businesses domiciled in Northern Ireland and contributing to our local economy.

Jackie Simpson BL

“Particularly at a time when everyone is facing financial hardship it is even more important that no one party can dominate the outcome of a case, purely on the basis of how much money they have.

“Commercial court is now also operating strict timetables enforced by the judge and there are penalties for failing to comply. Things are moved forward in a controlled and structured way which is fairer for everyone.”

Jill Comerton BL

“Creativity in terms of commercial settlements is increasingly becoming the norm. Court appearances are very much a last resort and there are all manner of ways in which a dispute can be resolved to the best advantage of a client. Not just in terms of saving money but particularly in terms of managing longer-term business consequences. Alternative Dispute Resolution, mediation and conciliation are all natural first courses of action in the area of Commercial Law.”

Ronan Lavery QC

“One of the most important advantages of the barrister is objectivity - we have some distance from the client and can give a more realistic outlook of the chances of success of a case. That’s not to say we are unsympathetic to the issues clients present, far from it. However, while we allow for the clients emotional involvement in their case, we have to set that aside and provide the kind of strong independent, specialist legal advice that can save the client a small fortune in legal fees. Indeed the earlier we are brought in to give advice the more we can potentially save the client in terms of setting out a realistic and effective strategy to run the case.”

Stewart Beattie QC

“We are of course aware of the perception that as barristers we exist to get into court and the longer a case runs the happier we are! That is simply not true. Having cases sorted and resolved efficiently is a matter of priority for us. You make a reputation keeping your client out of court long before you have to prove your success in court, that’s how barristers operate.

“How we are portrayed to the public is a difficult situation to manage. Our rules of professional conduct mean we cannot discuss or profile cases we have been involved in. However, this is the next stage of development to be considered by the Commercial Bar.

Michael Humphreys QC

“The Commercial Bar is very clear on the need for the business community not to fear legal advice, but to seek it early to save valuable trading time and money. We recognise that to achieve this we have to become more public facing towards business and the media. We are aware of the need for more communication and promotion of our services but we have to balance that with the very principles which make our system of representation one of the most envied in GB and Ireland.

“The operation of a ‘cab rank’ system means that no matter who you are, where you live in the country or what financial resources you have, you can access the most experienced legal advice available.”

Stewart Beattie QC

“In the last seven days I have acted for an insolvency administrator and for a domestic householder. Indeed the legal issues in the case of the householder were more demanding. The strength of the independent Referral Bar is that our costs are the same whether you are a commercial giant or the small man on the street.

We cannot pick and choose cases and the affluence of the client is irrelevant - that is how we preserve our independence and how our clients can have confidence in our advice.

“The Commercial Bar is open for business on a local and international level with skills that match the best in the world in a judicial environment that is the envy of the world. That should be celebrated and developed to provide a future for business and our young professionals.”