The English Bar: reflections from Ljubljana

This blog post is by Domen Turšič, who recently visited 12 KBW as a Pegasus Scholar. Domen studied law at the Universities of Ljubljana and Cambridge and is about to start a PhD on the circumstances precluding wrongfulness in international investment arbitration. In this blog, he reflects on some of the differences of approach between the legal systems in Slovenia and in England and Wales.

I come from a jurisdiction that knows no division between barristers and solicitors. Once one becomes a member of the Slovenian Bar (after completing a 5-year law degree, some 4 years of work experience and passing the bar exam), one may be both a transactional lawyer and appear in court with the same qualification. However, even in a unified profession, a de facto division may arise between lawyers who are seasoned trial advocates and lawyers who specialise in transactional work. While the small size of the Slovenian market does not allow for complete specialisation in either the barrister- / solicitor-type of work or in specific areas of law, there are legal professionals who would identify more as (direct access) barristers and those who would identify more as solicitors.

Being so accustomed to a unified legal profession, having a divide seemed odd to me from afar. I imagined that it involves some duplication of work and is more resource and time consuming. Not to keep the reader in suspense – after having spent 10 weeks shadowing barristers in London as part of the Pegasus Scholarship, my view of the Bar changed. It did not change because new reasons for the division came to my attention. Rather, the very things that I perceived as potentially unnecessary from the other side of the Channel (and a few additional kilometres on the road from the beaches of France) I came to see as the main benefits of having a division.

Yes, there are more pairs of eyes and ears that need to go through the same documents and/or witness statements in order to fully understand the facts of the case and form an opinion about the legal consequences that may follow. But different eyes (might) see different things, which leads to a case that is better prepared for scrutiny from the third, judge’s, perspective. Most importantly, the division creates a buffer zone between a barrister and the client enabling counsel to provide fresh and objective advice not only about the strengths of a case, but its weaknesses as well. This can save resources and time of both the client and the court as it can prevent arguing cases or parts of cases that are unlikely to succeed. This buffer zone is something that is lacking in my jurisdiction. I often hear stories about lawyers making dramatic gestures in the court room or elsewhere in the presence of their clients. This is done solely to make the clients, who obtain the services of the lawyer directly, think that their interests are being protected, while in fact it adds nothing to, or even detracts from, the argument’s strength.

One thing that I was particularly impressed by during my time in London is the overall quality of, and respect for, the judges. That is not to say that judges are not respected in Slovenia. But there is a different kind of authority that judges in England and Wales possess. There is the institutional authority they have from being part of the judicial system. This kind of authority and respect is shared between the judges in our jurisdictions. Where they diverge is in the personal authority judges in England and Wales have. Judges are usually accomplished barristers before they join the bench. They fought in the same trenches in which counsel find themselves when they argue their case before them. Judges in Slovenia, on the other hand, do not come from the lines of senior counsel. One can become a judge in Slovenia at the age of 30 and then build a career in the judiciary. It is extremely rare for an accomplished advocate to go into the judiciary (excluding the Constitutional Court and the Supreme Court). Therefore, there is a different type of relationship between judges and advocates. They do not always, as one of the barristers I spoke to put it, “speak the same language”.

As for the legal system itself, Slovenia is a civil law jurisdiction most akin to Germanic jurisdictions due to historical circumstances. Namely, Slovenian territory was under the administration of the Austro-Hungarian Empire before the First World War, which meant that, inter alia, the Austrian Civil Code (“Allgemeines bürgerliches Gesetzbuch”) applied. Interestingly, even after the formation of the Kingdom of Yugoslavia and the Socialist Federalist Republic of Yugoslavia, the Austrian Civil Code was used as applicable law (as far as the law of obligations is concerned) in the territory of Slovenia until 1978, when a modernised federal “Obligations Code” was adopted. This was further revised in 2001, but the principles largely remained an evolution rather than a complete revision of the Austrian Civil Code.

During my time as a Pegasus Scholar, I had the pleasure of shadowing William Audland QC and others from 12 KBW. I thus encountered cases in the field of personal injury, which then led me to re-examine how our Obligations Code regulates this area of law. Similar to English law, there are 4 general conditions that must be made out for liability to be found: damage, breach, causal link, and culpability. While breach and causal link have no notable peculiarities, the elements of damage and culpability are of some interest.

In Slovenian law, all types of material damage are relevant for liability. However, the situation changes in the context of infliction of damage when it comes to immaterial damage. The Obligations Code recognises immaterial damage only if it falls within the examples expressly listed in Article 179: “for physical distress suffered, for mental distress suffered owing to a reduction in life activities, disfigurement, the defamation of good name or reputation, the truncation of freedom or a personal right, or the death of a close associate, and for fear, if the circumstances of the case, particularly the level and duration of distress and fear, so justify, even if there was no material damage.” When making the claim, one must therefore place immaterial damage in one of the above-mentioned categories if the claim is to have a chance of success. A curious intersection between recognised immaterial damage and international travel law is of note here. An additional, but separate, ground for claiming liability for immaterial damage had to be included in Slovenian law due to the CJEU case Simone Leitner v TUI Deutschland GmbH & Co. KG (C-168/00) – the loss of enjoyment of holidays.

These categories of immaterial damage are fairly abstract, which brings us to the important role that case law has even in Slovenia’s civil law jurisdiction. Judgments do not have formal stare decisis power. However, they are still an important informal source of law. While Article 125 of our Constitution mandates that judges are bound by “the Constitution and laws” (and are thus not formally bound by prior case law), judges nevertheless must follow settled case law. This obligation stems from the rule of law, enshrined in Article 2 of the Slovenian Constitution, and the principle of legal certainty that it entails. If the judgment unreasonably departs from settled case law, it may be challenged as a breach of the Constitution. Case law concerning the fairly abstract categories of recognised immaterial damage is therefore a crucial element of every claim. An example is monetary compensation for mental distress suffered owing to a reduction in life activities. Based on settled case law, monetary compensation is awarded if the reduction in life activities is permanent. Temporary reduction in life activities is generally not recognised, except for extremely severe cases. For example, having to be on sick leave for 3 months with virtual immobility for 2 weeks is not exceptional enough to be recognised under mental distress suffered owing to a reduction in life activities.

Another peculiarity of Slovenian law concerns the element of culpability. Article 131(1) of the Obligations Code provides that “Any person that inflicts damage on another shall be obliged to reimburse it, unless it is proved that the damage was incurred without the culpability of the former.” We can see that the burden of proof in such cases does not follow the general principle of actori incumbit probatio, but is reversed so that the tortfeasor must show that they are not culpable if the other 3 conditions for liability are met.

These peculiarities aside, the 10-week placement has generally shown me that there are many similarities between our two systems, both when it comes to substantive law and the struggle of the judiciary to cope with limited resources. I thus return home not only with ideas for the improvement of our system, but with an appreciation of its positives as well.