University: University of Oxford
Degree: Modern history
Personal injury (PI) law falls under the law of tort. It involves civil claims brought to obtain compensation for injuries so as to put the injured person back in the position that they would have been in had they not been injured. The subject matter varies considerably, and can range from controversial, high-profile disaster cases through to road traffic accidents and health and safety cases. A related, specialised practice area of PI law is clinical negligence, which involves injuries suffered during medical procedures.
Theo Barclay’s passion for the legal profession was first ignited during his studies as a history undergraduate at Oxford. “During my second year I studied some legal history and from that point I thought that becoming a barrister was the way forward – principally because I wanted to be on my feet in court, arguing cases,” he recalls. An enjoyable work experience placement with a commercial solicitors’ firm failed to change Theo’s mind, while a couple of mini-pupillages confirmed that the Bar was where he wanted to be.
After Bar school, Theo completed pupillage at XXIV Old Buildings in Lincoln’s Inn before moving to Hailsham Chambers, another commercial set, where he has built up a varied common law practice. “I essentially do a bit of everything,” he explains. “Having done a commercial pupillage and then a third six months at Hailsham concentrating mainly on clinical negligence, personal injury and professional negligence matters, I now have a wide variety of different sources of work. It really depends on what comes in at any given moment, but I generally have one or two bigger commercial cases rumbling along in the background, on which I’m a junior, complemented by the day-to-day paperwork of a common lawyer. My favourite part of the job, however, is representing clients in two or three trials a week. The majority of these are personal injury cases.”
Regular court appearances are one of the main draws of PI work, in Theo’s view: “That’s the brilliant thing about having personal injury as part of your practice – even if you are only two years into your career, you’re in court all the time. That has really helped me improve as an advocate. Choosing a practice area that gets you into court is something that I would recommend to everyone. Court advocacy is something that a lot of commercial barristers don’t get to do that often, despite being the reason most of us decided to do the job in the first place. There is such a contrast between helping out on a big project and running the show, even on a case which is lower value. It is more interesting on a day-to-day basis when you are in control. As a tennis player might say – the match is ‘on your racket’. Personal injury is one of the few areas where you can take the lead in your own cases at only a couple of years’ call.”
Choosing a practice area that gets you into court is something that I would recommend to everyone.
Some of the most interesting PI cases for barristers at Theo’s level of seniority concern fundamental dishonesty: “The general rule is that you cannot as a defendant recover your costs from a claimant, but that rule can be put aside if the claimant has been fundamentally dishonest. However, proving dishonesty in court is very difficult to do, so case where you think the claimant has been dishonest are an exciting challenge for an advocate. In that situation, it is very important for your client not only to win the case, but also to convince the judge that there has been foul play, and to award the defendant their costs. This requires very careful cross examination in the hostile environment that becomes inevitable if you are to accuse someone of lying. Winning these cases is hugely satisfying.”
PI work is clearly weighty and consequential in its own right, its suitability for junior barristers honing their advocacy skills notwithstanding. Theo never loses sight of what such cases mean to his clients: “What you’re doing matters so much to the people you are representing, whether you are the defendant and are representing a doctor or employer who has been accused of doing something negligent, or you are the claimant and are representing someone who has gone through an awful period in which they have suffered a great deal, and now seeks compensation for substantial losses.”
The unique way of life at the Bar is perhaps the greatest attraction of the job for Theo: “The combination of a university-like way of life – looking things up in the library, thinking hard and meeting tight deadlines – and the intensity of the courtroom is one of the profession’s great attractions. The infinite variety is something that I really enjoy. Also, it cannot be overstated how great it is to be in charge of your own time as a self-employed person. Even if you end up working as hard – or harder – than your contemporaries in other professions, there is something wonderful about retaining ultimate control. This does, of course, come with pressure because you have to take responsibility for everything you do. There is a looming nervousness about making a mistake, but that also keeps you invested in the quality of your work.”
The Bar – particularly the junior Bar – as we know it is likely to be facing a period of profound change in the near future. “There will be attempts over the next few years to change the costs rules in order to limit the volume of litigation, especially in the PI sector, although the government’s intentions have not yet been fully fleshed out,” Theo explains. “It is important to remember that we are working in a market like any other, and any rule changes have a huge impact. It will be important for prospective pupils to keep an eye on the proposals as they develop. The question of online courts is also something that everyone aiming for pupillage needs to consider. If they are introduced in any form, it will fundamentally change the nature of the profession – and therefore the experience of any early-years practitioner. For my part, I think there will be real difficulties in running an online court for PI claims, because so much depends upon what an individual says in the witness box – in practice, this can be very different to what has been put in the evidence bundle before.”
Nonetheless Theo remains keen to encourage aspiring barristers with the right qualities to pursue their ambitions: “Advocacy lies at the heart of the profession – you need to be someone who likes to stand up and a make an unpopular argument under difficult circumstances, before facing tough questions. Academic success is very important as well – you are applying for a job heavily based around research, and the more relevant experience, the better. If you can tick those two boxes there is no reason not to go for it, at which point you will need the third essential quality for getting pupillage – determination. Everyone comes to the Bar through different paths, but there is no barrister who has got there without hard work and a stubborn refusal to give up.”
And to that end, Theo signs off with some practical advice: “I would encourage any reader to make full use of the help available at the Inns of Court. When I was starting out, I wish I had educated myself more about what they have to offer. There are so many resources at the Inns to help applicants, including people who can offer invaluable practical advice. It would be remiss not to take every opportunity they offer.”