Releasing talent through solicitor advocacy

Best known for his campaigning work on behalf of asbestos victims, as President of the Society of Solicitor Advocates, Frank Maguire is leading the organisation’ s emergence as a voice of real influence in the profession.

Having made representations to Lord Bonomy’s review of the High Court and to the Justice I Committee’s inquiry into the legal profession, the Society of Solicitor Advocates is now putting forward the case for being allowed to prosecute in the High Court as advocate deputes.

For Maguire, it’s the natural conclusion to the essence of solicitor advocacy – releasing talent that was previously frustrated or forced to make the move to the Bar.

“No longer do solicitors have to think ‘I like advocacy and want to appear in the higher courts’ and then have to take on the lifestyle of the bar. Solicitor advocacy has released talent and has the potential to keep doing so as younger members come to the fore.”

Critical to the ongoing progression of solicitor advocacy was group member Craig Connal’s appointment as a QC earlier this year – though issues remain unresolved in that respect.

“We have been told what the criteria are for being appointed a QC and are delighted one of our members has been appointed. But we still don’t know who is consulted in respect of that and if someone applies and is not appointed, we think reasons should be communicated to them why not.

“Craig Connal’s appointment sends a signal to other solicitor advocates that QC status isn’t cut off from them, but to make the process a bit more transparent and constructive, it would be useful if those making applications were told ‘you’ll never be a QC for this reason or in accordance with the criteria you need more experience in this area’. It’s all a bit shadowy at the moment.”

In the ten years or so since extended Rights of Audience were granted, Maguire feels the solicitor advocacy movement has steadily matured.

“Initially solicitor advocates defined themselves in terms of the Faculty, but we’ve moved away from that now. We have a large number operating in particular in the High Court and many more members forging excellent reputations in the Court of Session, with a good number of reported cases. The judiciary have shown nothing but respect and their stance is that we really don’t care where you have come from as long as you’re skilled in advocacy. None of our members have ever reported a situation of a judge discriminating against them.”

The Society of Solicitor Advocates has introduced other initiatives designed to ensure that maintaining high standards of advocacy is an ongoing process for members. They are running a two-year programme with the National Institute for Trial Advocacy to provide members with intensive advocacy courses.  The Society also runs its own civil and criminal advocacy courses targeted at those who have applied or are thinking of applying to be solicitor advocates.  These have proven to be very popular.

So, is the long-term goal to achieve formal recognition for the Society of Solicitor Advocates?

“We’re not seeking formal recognition, just expanding our role and seeking to assist the administration of justice for the benefit of Scots Law and Scottish society as a whole.”

Meanwhile, his own work at Thompsons in Glasgow remains in the spotlight following the recent House of Lords decision stating that asbestos victims could claim compensation even if they could not prove which of several employers was responsible for their illness.

With 540 asbestos pending cases in the Court of Session and 700 behind that, Maguire has been at the forefront of seeking compensation for workers, many of whom worked at the Clyde shipyards, since 1987.

Notable success in that time included leading a campaign together with his Partner and fellow Solicitor Advocate in Thompsons David Stevenson which led to the Damages (Scotland) Act 1993, which revisited the law in relation to fatal cases.  Maguire subsequently appeared as Solicitor Advocate in the first case applying many of the new provisions. He was also instrumental in removing the claw back of benefits from damages in personal injury cases leading to the Society Security (Recovery of Benefits) Act 1997.

In recent times he has turned his attention to changing the system of civil procedure, in essence seeking pro-active judges applying similar principles as successfully operate in the commercial court of the Court of Session and Glasgow Sheriff Court.

On behalf of clients he has raised a Petition with the Justice Committee of the Scottish Parliament complaining that all too often matters of historical fact have been denied in every case. “What we are seeking is a system which has a greater sense of justice so that rather than allowing parties to hide behind procedural formalities denying everything the Judge would bring the parties together with appropriate powers to order the sharing of information and production of evidence to identify the real dispute between the parties.  If there is no dispute then appropriate admissions would have to be made.”

“That way, you get to the real issues, save on administration, and assist the courts by settling more cases and having shorter hearings.”

To that end, the Justice 2
Committee has heard submissions from Maguire and it remains a matter of ongoing deliberation.

While the appointment of Lord Mackay as a dedicated judge to oversee asbestos cases has been welcomed, he is “still bound by existing rules”, said Maguire.

So where is the resistance to interventionist judges stemming from?

“Some elements of the judiciary might tend to say things have always been done that way. Others might argue asbestos cases aren’t that complicated. But complication shouldn’t be the criterion, need should be the determining factor. All we’re saying is, if the defenders want to argue that the lung cancer was caused by smoking and not by exposure to asbestos, that’s fine, but let’s not waste time arguing if this person worked at John Brown’s or was not negligently exposed to asbestos.”

He refuses to describe his campaign on behalf of asbestos victims as a “moral crusade”.

“People just aren’t prepared to accept any more that they can be denied compensation for three years, have to prove the same thing in case after case and we feel there must be some sort of judicial mechanism to make the process more equitable.”

How do his peers in the profession view his style of legal representation? It seems as though he pushes back the boundaries of a traditional legal service, entering the political arena on behalf of clients when conventional routes stall.

“I think as a lawyer with a lot of experience you just know when the system is wrong. Others might be content to work in it, but I think it is also the role of a lawyer to bring this to light in the wider interests of our society.

“The Scottish Parliament has given accountability to people, and offers the opportunity to the public to ask if they know what’s going on in our courts, is that what they want and are we doing our citizens well by this?”

His experience of dealing with asbestos sufferers leaves Maguire irritated by those who criticise the so-called “claims culture”.

“When I see people who have been exposed to asbestos and are suffering excruciating pain, and are progressively dying, I get annoyed when insurance companies talk about claims culture.

“Giving these people about £55,000 in no way compensates them.  If insurance companies addressed the needs of these people properly, they would have more sympathy when they complain of people claiming compensation for a bashed thumb.”