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The recent decision by Lord Hutton to appoint Michael Smyth, Clifford Chance’s (CC’s) head of public policy, as solicitor to the inquiry into the death of Dr David Kelly will have turned a few heads in the legal community.

There is no doubting Hutton’s judgement that, in the circumstances, public confidence in the politically-charged inquiry, which began on 11 August, would be better served by departing from the practice of using government lawyers and appointing an independent firm of solicitors. But it might have surprised people that the firm selected should be CC, a firm better known for commercial practice and sheer global enormity than its expertise in acting for high profile public inquiries.

In fact the firm’s experience of acting on previous inquiries, such as the BSE inquiry, helped it win the instruction in competitive conditions. But the firm’s role in other inquiries was rather different, as in each case, it acted for witnesses. Its position as main legal adviser to the inquiry itself is a first for a private practice firm, whether commercial or not.

In any event, CC is not the only commercial firm to be showing an interest in this type of work. As the number of high-profile public inquiries has increased, commercial law firms seem to have taken a greater interest. Both Eversheds and Allen & Overy (A&O) have acted on the Saville Inquiry into the events of Bloody Sunday and Eversheds also acted on the Harold Shipman Inquiry. An investigation into the most notorious episode in Northern Ireland’s recent past, or into how a deranged doctor managed to kill off many of his patients, may not sound like typical work for large commercial firms, but, from the firms’ point of view, there are undeniable attractions.

For one thing, acting on public inquiries can be fairly lucrative, often guaranteeing fee income over a sustained period. The Saville Inquiry has been one of the longest-running and highest profile public inquiries in British legal history. It has also been by far the most expensive. Conducted by a tribunal consisting of Lord Saville of Newdigate and two distinguished Commonwealth judges, it has been sitting for more than five years now, based for most of that time at Guildhall in Londonderry.

Saville agreed to benchmark rates to High Court proceedings instead of legal aid rates, to ensure leading lawyers were not put off from acting on the inquiry, and, as a result, the legal fees have attracted considerable adverse comment in Parliament and the media. According to official figures, Eversheds alone received some £11m in 2002 for its work in taking witness statements and providing professional support to the inquiry team. As for senior barristers, charge-out rates were set at £1,500 per day — excluding expenses, travel and reading time.

According to the Ministry of Defence, Edwin Glasgow QC has earned more than £2m from the public purse for his work representing members of the armed forces. Christopher Clarke QC, counsel to the inquiry since 1998, is estimated to have earned at least £1.2m from the inquiry.
But, even so, these rates are by no means as lucrative as commercial work. Clarke reputedly earns twice as much in London’s commercial courts and there is clearly more lucrative commercial work out there for Eversheds, which is thought to have charged itself out to the Saville Inquiry at around £180-£200 per hour.

Nevertheless, some commercial firms appear to be reconsidering whether the economics of their business rules out such work. As one City litigator put it: “It is a volume business. If you are engaged in an inquiry like that for any length of time, the hours you put in soon mount up. It is not as poorly paid as it might appear.”

Of course, fees are not everything and there are other motivations for commercial practitioners undertaking public inquiry work. The work is usually high profile and often of great public importance — so it can be beneficial for public relations purposes.

Charles Holloway, a partner in Eversheds’ public inquiry unit, says of the Saville Inquiry: “Taking a lead role on such a high profile inquiry was fascinating. We got to look into history and to help make some sense of it.”

CC’s Michael Smyth adds: “All lawyers enjoy work with a high interest element and it does not grow on trees. Lawyers here [at CC] want to be involved in this.” Another motivation for working on public inquiries is that the work can develop skills in young lawyers that benefit them when they come to work on the smaller investigations which are becoming more and more common in today’s regulatory environment.

So there are various reasons why commercial practitioners might want to do public inquiry work, but some people would question their suitability for it and whether they actually have the necessary expertise. After all, the Saville Inquiry has arguably drawn as much on criminal proceedings as on civil and criminal practitioners would presumably be considerably cheaper to retain. But, not surprisingly, commercial litigators known for their public inquiry work do not agree.

Holloway points to Eversheds’ size and network of UK offices as reasons why the firm was ideally placed to act as statement-taker for the Saville Inquiry, for which the firm interviewed soldiers from all parts of the UK. During the Shipman Inquiry, Eversheds took around 1,000 witness statements over an 18-month period. On Saville, the firm took nearly double that number of statements — some of which were very lengthy — from a diverse range of individuals, including Sir Edward Heath, who was Prime Minister at the time the events being investigated took place. Holloway sees a commercial training as being “of great benefit in developing the necessary administrative skills and extreme sensitivity to the various parties involved in such an exercise”.

It is certainly a moot point whether it is always appropriate for the Treasury Solicitor to undertake such a role. It is clearly desirable for any public inquiry to be seen to be independent of government and, unfortunately, retaining the Treasury Solicitor in such a capacity could provoke a degree of public scepticism, whereas appointing an independent firm of solicitors is one way of demonstrating such independence with a single stroke.

Another issue is whether the Treasury Solicitor would actually be able to cope with the administrative burden involved in a statement-taking exercise on such a scale and this, perhaps, is where large law firms can come into their own. Eversheds, despite its emphasis on corporate and commercial work, has poured considerable resources into developing its inquiries and investigations team. At one point during Saville, the firm had four partners and at least 50 lawyers dedicated to the unit.

A&O partner Richard Smith, who has acted on, among others, the Scott, Saville and BSE Inquiries, believes mainstream litigation skills are more important than, say, legal expertise in criminal law when acting on public inquiries. “All inquiries are concerned with collecting facts — to find out what actually happened,” he says. “You need the ability to absorb a large amount of information quickly, maybe in unique fact areas. Any able lawyer — if properly resourced — should be able to do this.”

He adds that when questions of procedural fairness arise, a good knowledge of administrative law is also an advantage — Lord Saville has twice been overruled by judicial review during his inquiry.
Moreover, the frequency with which human rights issues arise — for example, the soldiers’ applications for anonymity in the Saville Inquiry — ensures an increasing overlap between firms’ public inquiries groups and their more generic litigation.

Smyth argues that the vast resources of the larger commercial firms, their sophisticated IT systems and the sheer number of bodies they can deploy, give them a great advantage. “You need large numbers of highly intelligent, young lawyers to do most of the work — maybe 15 to 20 lawyers overseen by one or two partners,” he says.

“We already have a lot of expertise and forensic skills in acting for clients and defending their interests in City cases and before regulators and advising witnesses before Department of Trade & Industry inspectors.”

So some of the UK’s largest commercial firms are evidently keen to press their public inquiry credentials. But do they see this as a genuine growth area or more of a high-profile — and reasonably profitable — niche?

A&O’s Smith is doubtful that it could be a growth area. “I do not see any discernable trend here. Big inquiries are few and far between — they just are not predictable,” he says. His A&O colleague David Mackie QC is similarly sceptical when it comes to the big, public inquiries, but does foresee commercial law firms spending more time on inquiries, investigations and regulatory matters of a less high profile nature, as commercial litigation diminishes.

Others are more bullish. “We live in an inquiry culture now,” Holloway says. “This Government seems to like inquiries much more than its predecessors did, so there is more of a market for this kind of work.” But he acknowledges the Saville Inquiry as something of a one-off. After all, it is the second statutory, judicial inquiry set up to look into the same historical event — the first, the Widgery Inquiry, was held shortly after the shootings in 1972. “The next public inquiry is likely to be into something that has not yet happened.”

CC’s Smyth is another who sees an inquiry culture developing. “The way the democratic process is going, I think inquiries will continue to become a more significant part of the public landscape. Governments need to appear more responsive to disasters and controversial events and will need to address public concerns by establishing inquiries more quickly. There will be great pressure for inquiries to report in a short space of time and there will a need to be back-up from well-resourced law firms with the capacity to do this kind of work and, obviously, the expertise.”

But, Smyth sees more of a role for law firms than mere back up. More inquiries would require more people to head them and he foresees a point when we simply will not be able to afford to lose any more senior judges to inquiries — he cites Lord Saville’s full-time role on Bloody Sunday, which has effectively kept one of our law Lords out of circulation for the past five years.

“I anticipate there will be law firms with individuals who can head up these inquiries,” he says. The day CC partners are chairing our public inquiries, heads really will turn.

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