Episode 2 Barristers

For almost 100 years,

our justice system has been a hidden world.

Cameras are banned in courts here. Much of the work goes unreported.

Historically, our knowledge of this world

has been based on TV dramas, artists' impressions

and newspaper headlines.

But now, for the first time,

one legal institution has allowed the cameras in.

This is the world of the barristers.

The public want to know what we do.

They are entitled to know what we do.

And we feel we have a responsibility and duty

to therefore inform the public of what it is we actually do

as part of the administration of justice.

For 15 months, we followed barristers as they worked,

gaining an insight into our legal system.

Although I personally enjoy being in court a lot,

and I enjoy the applications etc,

I don't think being in court is the place for a family

if they can avoid it.

The pylon cases relate to the fact

that these pylons are sitting on people's land

and instead of sitting on people's land,

we've asked NIE to remove them.

With thousands of cases going through the courts every month,

and hundreds of barristers and solicitors,

this series is a snapshot of their world.

Our legal system is not just based in Belfast -

it's spread across Northern Ireland.

Judges, barristers and solicitors shuttle from court to court.

Normally, your case is heard where you did your crime.

So if you robbed a bank in Londonderry,

your trial will be there.

Mark Mulholland specialises in criminal law.

He's one of 84 Queen's Counsel - they're the most senior barristers,

handling the most complicated cases.

I'm a Queen's Counsel.

My role within that is that I would head up or lead the legal team

in the most serious and the most complex criminal law trials

that come before the courts in Northern Ireland.

I enjoy being in front of a jury.

I enjoy the advocacy that goes along with my job.

I thoroughly enjoy the challenge that comes with presenting the case,

preparing the case and delivering the representation

to the jury and the judge.

Ask the court officer, see what's going on.

Head up...if you want.

Part and parcel of that,

not only in relation to the facts of any given case,

but also the legal issues that arise,

I find very interesting, intriguing, and certainly demanding.

Mark has been a barrister for 20 years.

During that time, he has represented many different clients.

The people who walk through the court door

are not always who you would expect.

Trace that back to your man...

'The classic perspective is, of course,'

only the worst in our society come before the courts.

Yes, I deal in cases with very serious criminal offences.

I deal in cases with people who I represent at times

and who admit to committing very serious criminal offences.

Also, the IP address, as the expert had said, in relation to...

'But at the other end of the spectrum,

'if you think of the mother leaving her children to school

'who inadvertently is distracted'

for a moment by her child crying in the back seat,

pulls out onto the Newtownards Road,

pulls out onto the Lisburn Road, and knocks somebody down,

and tragically kills them or leaves them badly injured.

That mother is also the sort of person

that comes before a jury in a crown court

and in circumstances where the law now dictates

that there is a maximum sentence, in a case like that, upon conviction,

of five years' imprisonment.

Here's someone who probably has never even had a penalty point

in their life, so you get a broad range of people

come through the doors of the court room in a criminal case.

Really, your book and Guy Foot's book are really the two...

Ciaran Hampson is a Derry solicitor.

Today, he's going to the Lands Tribunal in Belfast

for an unusual case.

It's about property owners who say electricity pylons

are devaluing their land.

In England and Wales, there's a compensation process.

So Ciaran's brought in the English lawyer

who has written the textbooks on this issue.

And he's using local specialist, barrister Mark Orr.

We'll take the lift up - save the legs.

When I was starting,

very few people got involved in land law or commercial law.

I was called to the bar in 1980 -

at that time, there was a huge amount of criminal law.

I had been quite good at land law, if I may say that, at university

and I did a pupillage

with one of the leading property lawyers at the time,

now a senior judge,

and then my practice went into land law.

We're here to review what is called the "book of facts",

which is the preliminary document prepared by the expert witnesses.

The respondent in this case, NIE,

has taken issue with the content of the book of facts

as prepared on behalf of the applicants

who are the claimants for compensation.

The clients are people who have large pylons or power lines

on their property.

The leases for the pylons have expired.

People can ask for them to be removed.

But that's not very realistic,

so there's a mechanism that's meant to be triggered

to compensate the land owner.

Thousands of these cases have been dealt with in England and Wales.

But it's not so clear cut in Northern Ireland.

It's a case for specialists.

I would have a very wide practice -

some barristers would do a lot of work

for very few solicitors.

I'm quite the opposite. I have worked for...

There are approximately 320 solicitors' firms

in Northern Ireland,

and I have worked for over 290 of them.

I would do a little work for a lot of solicitors,

particularly in rural Ulster.

The pylon case was adjourned for more research.

It will be several months before the expert reports are ready

and the first test case is heard in December 2013.

Mark and Ciaran, like so many other lawyers,

work on several cases at the same time.

Like builders and plumbers,

they need more than one project if they are to make a living.

So they are meeting a client straight after the hearing

at the Lands Tribunal.

Afternoon, gentlemen - I think we all know each other?

Ciaran Hampson, John Doran on behalf of the client BricKKiln.

As we know, in this case,

Derry City Council are claiming the right

to deduct from BricKKiln

or to withhold from BricKKiln money due and owing to it...

This is BricKKiln.

It's one of Northern Ireland's largest waste companies

and it's been trying to get a client, Derry City Council,

to pay an outstanding bill.

We are on BricKKiln's waste management facility

located down at Maydown.

The waste management has evolved

from the old methods of taking to landfill to now...

The driver, today,

is diversion from landfill,

which is the complete opposite of what it was.

The layout of the site primarily is dictated

by the fact that we do not store waste outside -

everything is under roof and processed under roof,

hence the big sheds - the sheds are over 40,000 square feet.

It helps environmental issues on the site,

it manages dust, it manages odours

and keeps us friendly within the area.

Derry City Council withheld the money

after an allegation was made about how BricKKiln was handling waste.

But the police and Environment Agency

found the accusation to be unsubstantiated.

But two years on, BricKKiln is still waiting to be paid,

so it's had to go to court.

The Commercial Court handles disputes about money and contracts.

All are important to the parties involved or they wouldn't be there.

But it's not just businesspeople who turn to the law.

At the other end of the spectrum are families.

Orlagh McGahan specialises in children's law.

One of her clients is a parent whose children are in care.

Previously, the judge made an order

saying when, where and for how long she could see the children.

But for some reason, it isn't happening.

After several weeks of exchanging written evidence

and expert reports,

the judge is due to hear the case.

So Orlagh makes her final checks to make sure everything is ready.

It's this laborious attention to detail and questioning

that can make all the difference.

I'm preparing the examination chief and cross examination of the witness

for tomorrow's hearing.

So I'm working through the reports that have been filed by the Trust.

There's three.

What I'm doing is looking at their conclusions

and the reasons they give why they did something

and looking back for the evidence as to...

really, was that a good reason for doing it?

Or are they trying to justify their actions now after the fact?

I hate this type of preparation -

this is my least favourite part of the case.

I would liken this to revision for an exam.

It's done the day before, in my case,

and it will not end until this case starts tomorrow

and then I'll really enjoy it.

This part is the preparation - I absolutely hate it.

I just want to pull out all of the small issues

that really, in this case, point to the fact

that the social workers have made the wrong decisions in relation to contact.

The guardian is able to see the children love their contact,

they really want to go,

they rate themselves as ten out of ten excited about going,

ten out of ten for being happy at contact

and their mood only lowers when they have to leave.

So did the social workers not speak to the children

to find out how they were feeling?

Now, unfortunately, it seems to have reached a point where...

..they want to stand over their decision at all cost,

which is disappointing to me, because it's not really about winning or losing the case,

it's trying to find a better solution for the children

and a court case is not really that solution.

For many different reasons, legal cases can be unpredictable.

For Orlagh, a batch of new reports surfaces at the last minute.

Orlagh and her solicitor read through the night to check them.

They are looking for any information relevant to their client.

When, where and for how long she sees her child depends on it.

The case is listed today at 12 noon for hearing.

But I understand there's quite a number listed

and I anticipate not all of the cases can be heard today.

Interestingly, in the extra documents

received late yesterday,

my instructing solicitor spent a couple of hours last night

going through those to find out

was there any additional information that was relevant

and some extremely pertinent information was in that,

calling into question the role that the foster carers have taken,

which is a large part of our case.

So I have to make the application to the judge this morning

that we haven't been given enough time to consider the documents.

As a children's law barrister,

Orlagh's job is not about winning or losing -

she's legally bound to act in the best interests of the child.

And courts have a presumption in favour of birth parents

keeping contact with their children.

In this case, Orlagh and her solicitor believe

that an independent counsellor could make all the difference.

OK - we were able to open several of the matters in front of the judge

in relation to my application to adjourn,

one being that we wanted an expert instructed for the mediation

rather than the social work team that have been involved

and that such a late receipt of these documents

have meant that we haven't been able to properly consider them.

I don't know if the case is going to run today -

the longer we wait about and don't do it,

the less time it gives us to run it,

which means the longer we stand here,

the less likely it is going to run, oddly.

The case doesn't run.

The judge agrees with independent counselling.

Legal Services and the Health Trust agree funding.

And Orlagh's hopeful the case can be resolved

without coming back to court.

What I want out of this case is that there is a solution.

Maybe this work will make a solution come out of this.

They'll be able to agree

an appropriate level of contact for the children,

and in effect, the court proceedings can just fade away

because a solution has happened - that would be the ideal outcome.

Accidents happen all the time

and sometimes, there is someone to blame.

Ursula Burns is a solicitor who specialises in workplace incidents.

It's up to you, totally up to you,

but we'd have to issue proceedings before...

'Well, the cases that I'm involved in

'are people who have accidents whilst they are at work

'and come to me about the possibility

'of taking a civil action against their employers.'

Right, John - well, I'll close off the file then.

I'll take no further action.

'I try to explain to people when they come into me,

'try to prepare them as if the case'

was going to end up in court

so while I try to do everything to avoid it going to court -

in fact, about 80% of my cases don't actually go to court,

they're settled beforehand -

but it's only fair to prepare people that the end...the outcome is

that it might well end up in court.

Guy Nelson is a street cleaner. His union has sent him to Ursula.

In November 2011, he suffered chemical burns

when he was asked to clean up after a lorry accident.

It's not just about the injuries -

he also lost wages while taking time off work to recover.

An employee of the company who owned the lorry

dropped a pallet onto the ground and unbeknownst, I think, to anyone,

the pallet actually contained some sort of chemical liquid

which then splashed onto my client's feet.

And despite wearing his company-issued boots

and protective leggings,

he sustained fairly nasty burns to both his feet.

That's the photographs there. That's...pretty sore-looking.

Do you remember when they were taken, Guy?

This went on for months - this was away in...April.

That was them starting to heal, that was in May.

What happens now is we have instructed a barrister in your case,

Michael McCrea...

'Barrister comes in when I can't get the case settled.'

If it becomes obvious that the insurance company, for example,

are not going to pay, or they've denied liability,

I would then send papers to Michael

to get him to draft proceedings for court,

either the County Court or the High Court,

depending how serious the injury is.

This case is complicated

as the lorry owners and Guy's employers

will question who is legally liable.

They may also hope that Guy will give up.

The barrister's job is to negotiate his way through the disagreement

and bring the parties to a settlement.

I've been working as a barrister for in excess of 30 years or so.

You get quite a lot of satisfaction out of the job.

No two days are the same.

And you've got to be constantly on your toes, I think.

Why law? That's a good question.

I didn't want to do medicine actually,

is the real answer to that,

so the only other thing I could think of was law.

Hello?

No...

'The emotive side of it

'is not that relevant to the work that you are doing.'

But you can appreciate that it's an underlying current in the case,

but in the type of work that I do,

the client simply wants advice and help and guidance.

Not that often will they sit down

and express their worries and concerns

but you appreciate they're there all the time.

Frequently, the barristers' negotiations will run

right up to the court date.

It's May 2013.

BricKKiln has been trying for two years to get a bill paid.

A judge is due to hear the case today.

But it's not to be.

The case we have listed is listed for three days of this week,

but the defence have asked

to bring an adjournment application this morning.

Adjournments happen for all sorts of reasons.

However inconvenient they are, they are a fact of the legal system.

For BricKKiln, it's frustrating - it's got bills and wages to pay.

They can't be out of pocket indefinitely.

Over the weekend,

one of Derry City Council's main witnesses

had a major personal upheaval

and an application was made to adjourn the matter.

In a commercial case, if a client is deprived of income,

it can have a very serious effect on his business,

and the courts do their best and in the past few years,

there's been a number of attempts by the Commercial Court

to quicken things up - they have worked to some extent,

but the court couldn't envisage

what would happen in this particular case.

Well...are you taking an opinion on this?

Well, the figure of 135, that's their ceiling...

Mark and Ciaran switch tactics. They have two goals.

Secure a new court date for the case

and try and get a part payment for the money owed.

We are going to go and see

if we can speak to the other side.

I suppose find out what their stance is and deal with the application.

Mark's client wants their case heard as soon as possible.

He asks the judge to order Derry City Council

to make an interim payment.

His client can only wait.

The judge disagrees, but he does set a new trial date for September 2013.

But over the summer, the talking continues.

The parties reach a resolution

and Derry City Council finally makes a payment to BricKKiln.

For Mark and many other barristers, this is a typical result,

as the majority of their work settles outside the courtroom.

The legal system is becoming increasingly computerised.

But there is still a place for the mountains of paperwork that

barristers handle.

Mark specialises in criminal law.

The bigger cases you'll find you maybe have ten or 12 files,

or maybe more, so sometimes, a number of times, what tends to happen,

the bigger cases, the solicitors deliver to your home.

Just because of the sheer volume of paperwork.

Barristers have to take whatever job lands on their desk.

They can only turn down work

if they're already booked or there's a conflict of interest.

I represent everyone who I'm briefed to represent,

my colleagues at the Bar do the same.

We operate under the Cab Rank Rule, and the Cab Rank Rule is

we take the next client, the next case that comes through the door.

It's not for us to say,

"I don't like that case," or, "I'll only do that case."

We're there to represent everyone and that's the fundamental right

of everyone in a democratic society, and we believe in that right.

And when a barrister is sent a case they have to read it,

research it, assess it and give an opinion to the solicitor.

Mark's preparing for a tax evasion case.

Before Mark steps into the courtroom his client is relying on him

to have every angle covered.

This essentially are the trial papers in this case,

this is the charges at the outset.

These are the various witness statements of the proposed prosecution witnesses

who will give evidence in this case.

Then, in addition to that, over here you

have disclosure, and this is a list of all the other documentation in

the case, that is not being relied upon as part of the prosecution case.

We then have to cross reference that with

the evidence of the witnesses and build a picture of trying to ascertain

the full extent of the investigation and where there may be shortcomings

in the investigation to challenge or test the prosecution case.

So, having gone through all of that,

what I then tend to do is take an art pad,

a blank sheet of paper, and I start to set out, as I see it, a timeline

on the day of the incident, the key area where the incident happens,

the key witnesses who speak to that

and then down here, mobile phones, who is linked to which mobile phone,

and I start to build up a picture of this,

this will be added to significantly over the next few days as I go

through the rest of the disclosure and the rest of the case, as it starts to unfold

and we put together in preparation for the trial next week.

It's just something that I do, I tend to do it in every case,

I find it to be of great benefit,

probably absolutely illegible to anyone else

but I can just about decipher my handwriting

and I can work out what it is I'm referring to at any point in time.

It gives me, if you like, a mind map of the entire prosecution case,

and you find barristers going about with big suitcases filled

with papers like this and many, many more boxes of papers

and that is what we do on a day-in daily basis.

And it's the preparation like this. Outside of court hours, at weekends.

I spent all weekend at this,

I spent another three hours at it today, I'll spend

another hour or two tonight, and that's just the life of a barrister.

Orlagh's back in court for her child contact case.

Today, we're going back down to Newtownards Family Proceedings Court,

the case that has been ongoing now for quite some time is

back in the list again, for review.

Previously, we had campaigned very, very hard to get

the involvement of an independent mediator, who specialises

with families, to try and sort out the situation that has arisen

between the biological family, the foster carers and the children.

We were successful with that, the mediator has been involved, and

in fact we were told the mediation had gone reasonably well, and that

the parties had come to agreement as to what contact should look like.

That was on a Friday. Unfortunately by the Monday the foster carers

had decided that they no longer wanted to agree to the agreement.

The matter has been adjourned for the Trust to speak to

the foster carers and today we'll find out if the Trust have done that

and what the answer is.

The reality is families in Children's Order cases are only there

because things have broken down and they are past sorting it themselves.

It falls to the judges and all the lawyers to find a solution.

Many of these cases are legally aided.

And there are plans that barristers like Orlagh will no longer be used.

As far as I'm aware, the options for someone going forward

if the recommendations are brought into place is that they can continue

to get legal aid in certain circumstances, which will

allow them to get a solicitor only,

there'll be no barrister advice available.

And that solicitor will

get paid a set sum regardless of the amount of work required in the case,

or, if they can't get legal aid, they will have to represent themselves.

The main story really isn't about the barrister or the lawyer,

because we will just pivot and we'll turn our skills

into a different arena, and whilst it's disappointing to think

that this skill and the expertise I have might not be used any more,

to me this is really not about the barristers, it's about the families.

But today it looks like Orlagh's case is making progress.

It seems that the expert has been able to speak to

the children for a couple of hours and explain to them

what is going on, identify their concerns and the new agreement that

has been reached and she indicated that she will be able to file her

report on time and we should be back here in several weeks, having sight

of the report to see if an agreement has ultimately been reached.

Well, hopefully for us

this should mean that this case is coming to conclusion.

I'm really hopeful that the next time

we come back that it's for a final order that's

reached by agreement and that's me done. I'm out of the case.

Next time on Barristers.

The money is gone, the money is gone for a reason, the reason is ABC.

For buyers like ourselves, we're going to have to pay for this

for the rest of our working lives and we have nothing to show for it.

Come November, it will be two years. I mean, they told us to do it,

it happened while I was at work so I thought it was straightforward

but...didn't work out that way