Civil law

Civil law

Jonathan McDonagh

Serle Court

University: University of Oxford
Degree: History and politics

Civil law involves relations between persons and organisations. It encompasses a very broad range of legal issues, including those relating to contract, tort, probate and trusts. More specifically, civil law covers disputes that range from employment to professional negligence, and from education to property.

Bear with us here, but Jonathan McDonagh says that his main reason for not studying law was because he knew he was going to be a lawyer: “I was given good advice by a teacher that I should study something I was interested in and enjoyed at undergraduate level, because I could convert to law later. In fact, history gives you exactly the skills you need as a lawyer – there is a lot of detailed reading and written advocacy in my sort of law, and history is as good as anything to train you  for that. There are about 50:50 law to non-law graduates in chambers, including mathematicians, a classicist and even a marine biologist.”

Jonathan explains why he was equally certain that the Bar was the place for him: “It’s all about temperament. I’ve got lots of friends who are solicitors, and for many of them the idea of self-employment comes with too many unnecessary risks. For me, I like the flexibility and freedom that it offers. There is also a different sort of responsibility, where you have the challenge of being the person up there in court – the buck stops with you.”

Pupillage at Serle Court, while “not a walk in the park”, offered a great mix of work and broad training: “You are thrown in at the deep end and it is a massively steep learning curve. However, you have a real sense that people want you to succeed, so you’re challenged but in a supportive environment. You’re also given really good internal advocacy training before you’re let loose in court!”

Breadth and depth

Like most barristers at Serle, today Jonathan enjoys a diverse caseload, although it leans more towards the commercial chancery end of things and includes trusts, fraud, property and insolvency work. “The trusts work commonly centres on assets being argued over by private clients, institutions or charities,” he explains. “I also do quite a bit of property work, including landlord and tenant, and big-ticket commercial matters. Fraud is another substantial area, covering deceit and misrepresentation, as well as trusts and equity. It is usually centred on trying to get someone’s money back rather than putting someone in jail.”

Another feature of Jonathan’s work is its international flavour, with clients currently located in the Gambia, Dubai, Sweden and India. “It is very rare that I get a substantial case that doesn’t involve several jurisdictions, including disputes that are in fact happening overseas – I often have clients in offshore jurisdictions such as in the Caribbean, Jersey or Dubai,” he continues. “Even cases that are being heard in London have some international aspect, such as where the assets are held or the involvement of a foreign party.” This variety keeps things lively: “I couldn’t do the same sort of case day in, day out. There are a lot of backgrounds and personalities involved that make things interesting; you have opportunities to travel and there are always new problems to solve. Each case has its own facts and you need to think about which bits of trust, tort or contract law you need to combine to solve the problems that arise.”

“Each case has its own facts and you need to think about which bits of trust, tort or contract law you need to combine to solve the problems that arise”

Nizam of Hyderabad v NatWest

One of the most intricate and historically complex cases that Jonathan is handling at the moment involves a dispute between the former UK high commissioner of Pakistan and NatWest over £1 million (now worth around £35 million) that was transferred from the nizam – or monarch – of Hyderabad to the high commissioner in 1948. Jonathan explains the background and where things stand nearly 70 years on: “Hyderabad was in the process of being annexed by India, and the money was taken from the nizam’s bank account without authorisation. It was litigated in the 1950s when the nizam sued Pakistan, but Pakistan pleaded sovereign immunity and the House of Lords upheld that. The case was frozen until 2013, when Pakistan sued to reclaim the money. I act for the grandson of the nizam, who is claiming the sum as a beneficiary of a trust settled by his grandfather, while both Pakistan and India claim it as theirs. It is being heard in the Chancery Division and is essentially a trusts dispute as to who is the rightful beneficial owner of the money. With elements of public international law and sovereign immunity, it’s a good example of how I have to adapt my core area to whatever is thrown up by a particular case. This is definitely one of the more interesting ones.”

Whatever the brief, flexibility and pragmatism are crucial skills to draw on when preparing for a hearing or trial, says Jonathan: “Sometimes you have to give up on your social life for a while as the demands of a case take priority. If you’ve got 10 lever-arch files to read, you’ve just got to do it and if that means you have to cancel dinner plans, then so be it. It all balances out eventually, though – for example, you can take holidays when you want to. There are short-term sacrifices, but everyone accepts that.”

He also issues a warning about financial planning: “The thing I hadn’t grasped was the difficulty caused by people not paying you in a timely manner. We are paid very well at the commercial chancery Bar, especially when compared to the criminal and family Bars, which have been badly hit by the public funding cuts, but it can be erratic – you can go for months without being paid anything. You need to be astute and plan for that like any other self-employed job; don’t spend the money before it has been banked!”

The good news for chancery barristers and other lawyers is that in an economic downturn, such as that which the United Kingdom is facing post-Brexit, more fraud is discovered and individuals are often more motivated to enforce their contractual rights. “The sort of law I do can hit a peak in a recession – we are somewhat countercyclical – so from that perspective I think our industry has much to be afraid of in terms of the uncertainty surrounding Brexit.” However, change is afoot in terms of new time restrictions on chancery trials: “We are looking at what the full implications of fixed-term trials will be. The courts have traditionally been indulgent over time, which is not sustainable given the court’s workload these days. Now that there is the new ‘guillotine’ system, advocates will be required to take a different approach and be more focused.” He urges students to use their year at Bar school wisely to “master the Civil Procedural Rules – it will be the best use of your time and it’s genuinely important; if you do, you will have a massive head start in practice”.

Sound advice

Jonathan’s golden rule for budding barristers is to “go and see it; don’t just read about it”. “Take yourself off to the county court or High Court, and do mini-pupillages and vacation schemes,” he elaborates. “There is no substitute for going and sitting with people and talking to them about what they do every day. That’s how you get a true feel and understanding for how practice is different from the study of law.”

And it all helps you to convince recruiters that you are really hungry for a career in law: “The truth is that top academic grades are taken for granted, so the thing you have to convey is why you want to do the job and that you’ve got the determination to get through the training and cope with the inevitable knockbacks. It will be different for each person to work out how to get that across, but bear in mind that everyone’s application form will be stellar. Think about what you’re going to say in the interview room that will make you stand out and make the other barristers really want you as a member of their chambers.”