The Barrister Series S5E6 | A Legal Journey with Elizabeth Herbert

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TRANSCRIPT

Tune in for Series 5 of the HIP talks, a podcast series of discussions on legal issues hosted by Hugill & Ip Solicitors, an independent boutique law firm in Hong Kong providing bespoke legal services and exceptional client service to individuals, families, entrepreneurs and businesses, both locally and internationally. The forthcoming podcasts are The Barrister Series. Over six episodes, the team sits down with preeminent Hong Kong barristers to discuss contentious issues related to civil litigation, employment, family, trusts and estates as well as increasing awareness about the importance of the role of barristers in court proceedings and the relationship between solicitors and barristers when acting for clients.

Hugill & Ip provide expert advice across a variety of dedicated practice areas both contentious and non contentious and outstanding team of solicitors who have achieved exceptional results and recognition in the areas of dispute resolution, probate & trusts, family & matrimonial, corporate & commercial and employment & immigration. Hugill & Ip applies modern thinking to legal services, uses technology in a contemporary office environment and is fully committed to giving back to the community.

Adam Hugill  01:17
Hello and welcome to the final episode of the barrister series. I’m Adam Hugill, a partner with Hugill & Ip, and I’m here today with Elizabeth Herbert, a barrister and founding member of Pegasus Chambers. Good morning. Morning, Elizabeth, you and I have been working together pretty much since the day I arrived in Hong Kong. I think they’re about the same time she qualified as a barrister in Hong Kong, which I hope you don’t mind me saying was all the way back in 2008…

Elizabeth Herbert  01:39
You shouldn’t give away a lady’s age, but yes, it was a roundabout then…

Adam Hugill  01:43
Do you remember the first case we worked on together?

Elizabeth Herbert  01:46
Yes, I think it was an application for summary judgment. It went much longer than we initially anticipated, if you remember, and we ended up adjourning that hearing, and I believe you ended up settling it on favorable terms.

Adam Hugill  02:00
We did. We did very well at the end, thankfully, and so, because you were obviously a good-look charm, we’ve continued to work together on many cases over the following years. Before we go on to talk about a few of the cases we worked on together, let’s go back to the beginning. What attracted you to the law?

Elizabeth Herbert  02:19
I’ve always had an interest in the law from an early age. I’m not sure whether it was because my father, who was a policeman when I was growing up, used to have his police officer friends over. They would chat about their cases, and I just took an interest at an early age, and then after that, I would read any novel, watch any film that had anything to do with trials or the courts or anything, and it developed from then onwards, really? You grew up in Hong Kong, that’s right. Yes, I was born in Hong Kong. I spent my childhood years here, and then I went to study in the UK, and then I returned to take up practice. Yeah.

Adam Hugill  02:56
So from day one, did you want to be a barrister?

Elizabeth Herbert  02:59
I always had that in my mind. I also, at one stage, considered a career in acting, and my father assured me that the best way to do that would be in the courtroom. And so that’s what happened.

Adam Hugill  03:12
Very sensible parental advice. And so, you always wanted to be in the performing role of a barrister in court, rather than a solicitor, who often gets perceived as being behind the scenes and dealing with the paperwork and the client on a day to day basis.

Elizabeth Herbert  03:25
Oh, yes, I always wanted to be in the spotlight. Yes. I always wanted to do the courtroom side of things. I wanted to be an advocate. It was that part that really interested me. I did try to work in a solicitors firm for a short time in the UK, about a year, and I was in the commercial property department, and it was very transactional, so filling in leases, coloring car parks on plans and this sort of thing. And it was very similar, day in and day out. And I realized quite quickly that it was not really what I wanted, as far as a career in the law is concerned.

Adam Hugill  04:00
At the start of your career in Hong Kong, you had a fairly mixed bag practice. You were involved in civil, criminal and family cases. Would you advise junior barristers at the bar to start their career with such a wide range of cases?

Elizabeth Herbert  04:15
I think it’s quite a good way to start a career. There are many advantages to doing it that way. One is that often you don’t know what you’re best suited for once you first start. And the other thing is that just having a broad spectrum of experience helps you later on.

Adam Hugill  04:32
And do you recall your pupillage and the work that you were doing with your pupil masters at the time?

Elizabeth Herbert  04:38
It was also very mixed. We’re required to do pupilage with various different pupil masters that have different areas of expertise. So I went along with two criminal practitioners and two that are more on the civil side, and I saw a real range of different cases. And what I enjoyed most about pupilage was seeing everyone’s different styles and how you can be a successful advocate using your own style. It’s not that there’s only one way to do it.

Adam Hugill  05:08
Which I suppose is another limitation to law firms, which often adopt a house style, and all lawyers, whether within reason, expected to sort of follow the corporate house style, but barristers all being self-employed, you get to be much more independent.

Elizabeth Herbert  05:22
Yes, you get to be independent. You get to do things your own way. When you first start out, it’s obviously best to do things the way you are taught, and then let your practice develop, and you’ll find your own style. And that happens quite organically.

Adam Hugill  05:38
Fantastic. It wasn’t my case, but one of the earliest, I think, biggest cases that you were involved in, only a few years into your career, was the Oriental Daily and Fevaworks case. Oh, yes, it went all the way to the Court of Final Appeal. My partner, Alfred Ip, I think, was the handling partner working with you on that case, could tell us a little bit about that case? It’s all in published judgments, and so we can talk about the issues. And I think it was a groundbreaking case, essentially worldwide, on the issue of internet defamation.

Elizabeth Herbert  06:08
It was a very, very interesting case. We were determining the liability of an internet forum host for comments posted on their forum by third parties. And it was a world first in terms of a final judgment on this question of law. There had been other judgments elsewhere in the world, but only in an interlocutory stage. So it was a world first at the time which made it incredibly exciting. And what was exciting about it was that we got to read so many cases, both Hong Kong cases and international, in order to help us work out what the liability or what our arguments on liability should be.

Adam Hugill  06:50
And was it intimidating, appearing in front of the Court of Appeal and the Court of Final Appeal, whilst being so junior?

Elizabeth Herbert  06:57
I was not on my feet, so I had a leader at the time. I don’t think I was intimidated so much that I was in awe of the whole thing. I think as a junior barrister, to be lucky enough to have a case of that caliber and in a Court of Final Appeal is quite amazing, and something that you just don’t forget.

Adam Hugill  07:16
Well, unfortunately, most of my cases start in the Labour Tribunal, and my idea of cases going to the highest court is an appeal to the High Court. I think I’ve been in the Court of Appeal once in the last few years. It doesn’t happen very often, going back to the matters that we’ve worked on together, one of the large areas is discrimination. We’ve worked on a number of discrimination cases over the years, which is rather fortunate, because there aren’t that many cases that go through the court system, and even fewer that go all the way to trial, and so judgments and authorities and Hong Kong law on discriminatory matters are still somewhat few and far between. Why do you think it is that Hong Kong doesn’t have many discrimination cases that are litigated all the way through to trial?

Elizabeth Herbert  08:04
Well, I think it’s there’s a number of reasons for this. I think when you’re dealing with things like discrimination and sensitive topics in particular, that employees can be really reluctant to speak up and come forwards, even if they feel that they’ve been wronged in some way. So, I think one of the issues is, is this that people just are reluctant to speak up. I also think that the process lends itself to settlement. I think that the EOC, through their conciliation process, settle many cases, or help to settle many cases. So there’s another reason, and often as well, compensation is rather limited, so you’re not going to get your huge payout from running the case. So for a lot of people, they may not see necessarily the value in coming forwards. They take a risk in exposing themselves, and don’t necessarily end up with much in the way of damages. So, I think those are the main issues.

Adam Hugill  09:04
It is high risk because the discrimination cases are few and far between in Hong Kong, one of the things we have to advise our clients is that as soon as the case is filed, almost certainly it would be published in some form of publication, and this certainly acts as a incentive for employers to settle with employees during the EOC stages. And again, it was very thoughtful of the legislature to put in place the summarized Equal Opportunities rules to try and make the process a little bit shorter than the sort of usual White Book litigation, but the case still requires full trial.

Elizabeth Herbert  09:43
You do still have to go for trial if you don’t manage to settle the case, so that in most cases does require representation, because it’s not an easy thing to litigate on your own.

Adam Hugill  09:55
It not at all. I refer to its clients as sort of full wigs and gowns trial and a lot of employment matters, obviously, are handled in the Labour Tribunal. And an employer, sorry, employees are actually employers, and employees are usually somewhat accustomed to how the Labour Tribunal works and appreciates the sort of inquisitorial judge-led system. The discrimination is very, very different in the UK, discrimination cases are handled by the Employment Tribunal, and so all employment cases have a very similar flavor to them. Whereas I think with the with the Hong Kong system and all cases appearing in the District Court, it’s far more intimidating for individuals to start cases than it would be to bring the case in the Labour Tribunal.

Elizabeth Herbert  10:40
I think that’s true. And of course, with all that comes with the public hearing, I mean, you can help a little with that. In some cases, you can anonymize your client’s name from appearing in the media, and that might help some people come forwards and make complaints. But again, there’s no guarantee. So this is something I think a lot of people are probably put off by as the fact of a full and public trial on matters that can sometimes be very personal and very private, very…

Adam Hugill  11:11
Also, you mentioned costs and the awards damages that are given through the District Court in discrimination cases, one of the things that we always have to advise clients on is that the costs burden is slightly different to the regular court system, and so each party typically would bear their own costs. I can understand the rationale for that, because it’s to encourage people who’ve been discriminated against to bring their cases.

Elizabeth Herbert  11:39
Absolutely because they don’t want to be faced with the idea of paying the other side’s costs when the other side might be this big corporate entity and you’re in this David and Goliath kind of situation. So that’s why the rationale exists. But at the same time, not having your costs paid for at the end of the day is something you have to bear in mind when you’re launching a claim.

Adam Hugill  12:03
It is if you’re a sort of relatively modest earner in Hong Kong and you are discriminated against on whatever grounds of discrimination, you can gain your financial costs back, which usually your loss of employment for a period of time… six, possibly even up to, say, nine months and then injury to feelings. But injury to feelings doesn’t mean what I think most employees think it means everybody, probably, through movies and TV dramas and the like, think that they’re going to have a huge, sort of seven-figure payday, and that doesn’t materialize.

Elizabeth Herbert  12:39
No, I think we probably have Hollywood to blame for that, but no, certainly in Hong Kong, you’re not going to get huge payouts. And I’ve found that usually the cases that do go to trial that I deal with, at least it’s not really a question of money. It’s not about the money. It usually involves an employee or someone who feels like they’ve been wronged in some way, and that their action in bringing the case to court will hopefully either enlighten the employer so that doesn’t happen to someone else, or at least bring some awareness around the issue. A lot of the times in these cases, what someone really wants is just a recognition that they’ve been treated unfairly, discriminated against, etc, and they’re not actually looking for a huge payout, which is good because you don’t often get one in Hong Kong.

Adam Hugill  13:26
We also worked on a case where we had the opportunity to view this from the other side. It was an individual who was accused of sexual harassment by one of his junior employees. Yes, I remember this one. The difficulty with that case is that the gentleman in question, who was ultimately vindicated, there was no finding against him of any wrongdoing whatsoever, but he had to go through, I think, about three or four years’ worth of legal proceedings, starting in the Equal Opportunities Commission and going all the way through to, I think, what turned into a seven or eight day trial being accused of sexual harassment, and that poses an incredible toll on him as an individual, on his wife, on his family, and so that was a case very much, very much along the same vein, is that somebody that needs to clear their name, so it’s a point of principle.

Elizabeth Herbert  14:19
Yes, that one was very tricky. You could see that it was obviously taking a toll on the client. I mean, nobody wants to be accused of such things, particularly when they feel like they have not done anything wrong. But as a respondent, as distinct from someone who’s bringing the claim, you have little choice, because if the other side doesn’t want to settle, you have little choice but to carry on and defend yourself. And that’s what we did for him. And in many ways, it’s similar to criminal cases. Again, when a prosecution is brought in a criminal case, one doesn’t have a choice. If no plea bargain can be reached, then you’re going to trial and you’re defending yourself. So there has that. There’s that similarity. Achieve as well between the two areas…

Adam Hugill  15:03
We’ll come on and talk about your criminal practice in a moment, but just to sort of finish your thoughts on discrimination, not all matters are court related matters, huge companies and sort of major organizations often implement very strict policies against equal opportunities, discrimination and harassment. And the two of us have been involved in a number of internal investigations where accusations, I think, in the two that we’ve been involved with were both sexual harassment. Accusations were made and they were being investigated internally.

Elizabeth Herbert  15:42
Yes, and then often you’re having to deal with disciplinary hearings as well, which obviously are less formal than court proceedings, and they just follow the organization’s rules on how to deal with the hearing of the matter. So we’ve had to deal with those as well, and they’re very different from court experience, because it’s not a formal process. I mean, there are rules, but it’s not as formal as a courtroom process. So it’s distinctive in that way, and the way you can answer questions, and sometimes the extent to which you’re permitted to ask questions can be rather limited. So it’s about using the time you have and the parameters you have wisely…

Adam Hugill  16:25
Yes, and the issue that I have with such matters is, as lawyers, we look at things based on the sort of letter of the legislation. So the legislation says one thing, and we view the case against what the what the ordinance says for internal disciplinary matters, often you’re working with an internal policy which is much wider and sometimes more vague than the legislation, and so arguing a legal point is never a smart thing to do in such matters. You really want to sort of portray this sort of factual position with evidence, but also touch on the emotional position more than you probably would in court proceed.

Elizabeth Herbert  17:05
That’s true, and you’ve also got the new unique position where you don’t have many lawyers in the room, so even the person hearing or deciding the matter, the whole disciplinary tribunal, may have one lawyer on it for advising purposes, but mostly you’re dealing with non-lawyers. So that’s unique as well, because we’re used to presenting before judges and professional adjudicators.

Adam Hugill  17:31
Yes, and so the decision maker is not a lawyer, exactly, and it’s sometimes difficult, really, to sort of try and phrase it as a legal question, rather than assisting them, in sort of fact, finding and arriving at the outcome…

Elizabeth Herbert  17:43
That can be the challenge, and it can be difficult as well for the person going through it, because often the panel is set up with people that they view, in some sense, as their peers, so that can be very challenging for them to deal with as well…

Adam Hugill  17:56
Absolutely, and also from an employment perspective, which is somewhat unique. Usually, the accuser and the accused are still working in the same environment together, depending on the size of the organization, may even still be part of the same team, and so it’s a very awkward dynamic for everyone involved.

Elizabeth Herbert  18:15
It can be difficult, and it can also be very high tension, high emotion, which obviously has its challenges when you’re dealing with that kind of situation as well.

Adam Hugill  18:26
Over time, also, rather from time to time, there’s a push, sometimes at the Equal Opportunities level, sometimes at the society level, to expand Hong Kong laws on discrimination, to incorporate other areas and to make it more accessible. What are your feelings on how you think discrimination law in Hong Kong will evolve and move forward?

Elizabeth Herbert  18:46
Well, I think it’s bound to evolve and move forward. We look at other jurisdictions, and their legislation is much more vast than ours. We’re rather limited here in Hong Kong. So, I think it’s natural that the law will evolve and that there will be more and more classes of people that are deserving the eyes of the law of protection, and the legislation is bound to come in eventually to deal with that. But as of yet, we’re seeing quite slow progress in the area, as far as legislation is concerned, there hasn’t been much development.

Adam Hugill  19:20
I agree. I think the last major change was, oh, should really have my notes in front of me, 2011 when the Race Discrimination Ordinance was enacted. Since then, the core area, which has been a sort of a lot of noise and focus, has been sexual orientation discrimination. There was quite a lot of movement by the EOC for a period of time, but that does look like it’s sort of dampened down a little. I think, with the series of cases that are flowing through the courts, starting with visas and moving through tax and everything else that that seems to be the sort of core area for the next focus.

Elizabeth Herbert  20:06
That probably makes sense, because when you look at our legislation compared to other jurisdictions, it’s that that screams out that is missing in terms of sexual orientation protection. So, it makes sense that that law would develop in that area, and I think it’s bound to eventually get there. It’s just rather slow as a process.

Adam Hugill  20:27
Yeah. And I think one of the other areas I actually left the UK as this was coming into sort of having any real effect, but that’s age discrimination law, and with Hong Kong being an aging society, I think someone’s going to have to focus on ensuring that older workers are protected, especially protected from termination simply due to age, when I think there’s going to be a real push for older workers to remain in the workplace.

Elizabeth Herbert  20:56
Yes, that would make a degree of sense as well, for the law to develop in that way. We’re in a society now where people are working long past the standard, if I can put it that way, retirement ages, and certainly at the bar, there’s no requirement for retirement. So, it is very common at the bar to find people working into their older years.

Adam Hugill  21:19
Until fairly recently, I lived on the same floor as a Hong Kong barrister who was well into his 70s and was bounded to work in the mornings full of energy and excitement and loved his job. And so I think if somebody like that found themselves in a traditional law firm structure, being retired out at 60-65 he wouldn’t know what to do with himself.

Elizabeth Herbert  21:40
Yes, absolutely. And you spend your whole adult life building up a career for yourself and building up that expertise. So it’s a good thing, a positive thing, to be able to continue to give that to society into your later age, into your later years.

Adam Hugill  21:55
Well, that give me, gives me a perfect segue into talking about how your career has developed in the criminal area. You’re very well-known now as a criminal defense barrister. We haven’t really worked together that much on criminal matters. I don’t tend to deal with anything that involves sort of serious crimes. The few matters that we have worked on together tend to be either sort of somewhat administrative crimes that arise under the Employment Ordinance and sort of failure to pay wages and things like that. And also, more often on immigration matters, with people overstaying their visas and the like. Actually, we saw a huge uptick in such cases after COVID, because people had sat in Hong Kong with their passports in their drawers and hadn’t realized that their visas had expired and that technically they were working illegally in Hong Kong. How do you view and how do you deal with such cases?

Elizabeth Herbert  22:58
Well, usually, if someone is being prosecuted for a case, the first thing you want to do is to look at the facts of the case and see if it’s potentially possible to see if the DoJ will deal with this case in another way, by means of bind over, or in some way that won’t impact the client too detrimentally. With a bind over, you don’t get a criminal record. You are bound over, and as long as you behave yourself for a time period of one two or whatever years, and nothing else will happen. So, these sorts of things can be explored once you have a case that involves breaches like the ones you’re talking about.

Adam Hugill  23:38
I do find it very difficult the few times that I do advise on criminal matters for such offenses, immigration offenses, because you’ve got to tell somebody who, in every other aspect of life, is a fine and upstanding person that they could, in theory, go to prison. And the reason for that is because they’ve allowed a document to expire, and they’re very surprised that that could be the outcome. Fortunately, in most of the cases I’ve dealt with, as you say, we are able to deal with it administratively with the Department of Justice, but we have had cases where the individual in question has received a suspended prison sentence, which they view as being particularly harsh.

Elizabeth Herbert  24:23
I can see why it’s thought of as harsh, and it can be a surprise. I find the same thing that you do as well, Adam, that when I’m dealing with more serious crime, of course, the person is not surprised when I say, you may well have to go to prison for this. But when you’re dealing with someone who, for example, is a working professional who’s never been in trouble with the law before, and there’s an immigration matter or something similar, and you warn them that a prison sentence is possible, it always comes as a shock. The reason really that this is the case is that the system is set up to protect the workforce, and it’s really aimed at those blue collar workers that are working in restaurants, driving trucks and dealing with this sort of work to ensure that their jobs are protected and not taken over by people outside of Hong Kong. So that’s why the rules exist, and that’s why they’re as harsh as they are. But I do have sympathy for people that fall foul of the law in circumstances such as this, because often they don’t realize, and that’s, of course, no defense, but they don’t realize how serious a matter it is.

Adam Hugill  25:33
Exactly, it’s just a mistake, and quite often, in such matters, employees spend or put a lot of reliance on their employer to get this right. And if it’s, if it slips at HR, someone forgets to renew a visa and the like, they often don’t see there’s any fault of theirs, and it’s, it’s a very heavy consequence. I’ve even had clients that have left Hong Kong just because of the mere threat of an investigation. They’ve sort of stopped their career and pendant and moved back to Hong Kong because of that risk of imprisonment.

Elizabeth Herbert  26:09
I’ve had many cases where, for example, the employee has left it to the employer, or the employer has even sent a letter saying, we’ve got you your visa that you need to come and work in Hong Kong, and they’ve come and worked, and then there’s been some kind of immigration raid or something, and they’re arrested, and they’re at least put on remand for a while before being granted bail. And that can be very shocking, and often they don’t even realize they don’t have the proper visa. But it does just show how important it is that to check that all these things are correct and in order before you take up a job here in Hong Kong.

Adam Hugill  26:48
I remember that was actually a case we worked on probably more than 10 years ago now, and I believe the lady in question sat on remand in Hong Kong for about three or four months.

Elizabeth Herbert  26:57
Yes, before she came to us, she did. She was there, and she was absolutely devastated to be placed in that position. She was in a real emotional state at the time we saw her, and I was very pleased to be able to assist her in the way that we did, because she had all the letters from the employer showing that they had told her that she had the correct visa, which just wasn’t the case.

Adam Hugill  27:23
Exactly. Looking to your sort of mixed practice that we described earlier, and the fact that you’re now a renowned criminal defense barrister, what do you think that you learn from your civil practice that you can apply to your criminal practice and vice versa?

Elizabeth Herbert  27:39
I think it can be very useful on a civil case having criminal experience. The reason I say that is because cross examination in criminal case is so different. In civil cases, often you’re cross-examined based on documents, based on exhibits that are already there before you can plan exactly what you’re going to say. In criminal cases of course, there’s a degree of cross examining on witness statements and on documents, but most of the time, or at least a significant amount of the time, it can be things that you’ve just heard there and then in the courtroom, so it forces you to be able to adapt, and it forces you to be able to deal with spontaneity. And I think that helps in a civil practice as well, because even though you are much more relying on documents and exhibits in cross examination, there will still be times when your witness says something or when the other side’s witness says something that you just didn’t really anticipate, or that’s contradictory in some way, and so it helps to have that experience of dealing with things and being able to adapt your questioning.

Adam Hugill  28:53
Yes, I don’t know how you do it, really. Witness statements in civil cases, people probably don’t realize, but sometimes they’re prepared even a year or so ahead of the trial, and so that that evidence is locked in for you to trawl through and scrutinize against all of the evidence, but reacting to somebody on the stand who says something… I’ve seen you before now with your finger in 10 different pages of the bundle, ready to ready to pounce on people when they sort of get it wrong or contradict themselves.

Elizabeth Herbert  29:24
Yes, that’s the fun thing, because when they’re giving evidence, you’re remembering what you’ve read in the bundle, which is why preparation is so important. And anything that contradicts any page in your maybe 20 bundles or more, you’ve got to be able to turn to straight away in order to not lose momentum.

Adam Hugill  29:41
Send your solicitor scurrying for there’s a passage that I read, and we have to go through 1000s of pages to find the passage. I’m not going to ask you the question that I’m sure you get bored with constantly, which is, how do you represent somebody that’s guilty? Because obviously, everybody’s entitled to fair representation, but what I am intrigued by is, as a barrister, you’re carrying a lot of weight on your shoulders, especially a criminal barrister, where somebody’s liberty is at risk. Civil cases are largely about money, and I don’t mean to say just about money, but it is money. Defending somebody who runs a chance of going to jail, possibly for a very long time, must have a huge impact on you.

Elizabeth Herbert  30:29
I think it’s something like anything that you just get used to. I remember when I was doing my first trial, which was a cruelty to animals case, which involved a killing of a deer, I was terrified of the idea that I was representing someone with his liberty at stake, and I channeled that into just spending as much time preparing the case as possible so that I could be as well prepared as possible. But that was something that really did frighten me at the beginning, how important it is, the work that you do. At the same time. That’s what makes it enjoyable as well, because what you do every day has an impact on someone. So we talked about the Court of Final Appeal case and having an impact on the law, but actually, what you get most fulfillment or enjoyment is the wrong word, but job satisfaction from is real people that you’re dealing with every day, when you help someone and it makes a real impact on their lives, whether it’s because they now don’t have to go to jail because they’re found not guilty, or whether it’s a child custody case and the family is staying together. Whatever it is, you’ve really made an impact on someone, and I think that’s really the joy of what we do.

Adam Hugill  31:51
I agree. It’s very similar to my practice as an employment lawyer, a human is often at the very center of everything that we do, whether it’s if you like day-to-day employment issues, or whether it is discrimination or workplace injuries or things like that, there’s always a human element to this that’s not purely sort of business and transactional.

Elizabeth Herbert  32:11
And I think that’s what my cases have in common. So, some people say to me, well, hang on a minute. You’re doing mainly criminal but then you do these pockets of civil law, like the discrimination and harassment aspect, or like some child custody cases, etc., but I think the answer to that is that there, there’s a human in the center of all of this, and that is what attracts me to those specific areas of law.

Adam Hugill  32:36
But also areas of law where you run the risk of seeing sort of some really horrific scenarios. How do you sort of distance yourself from that?

Elizabeth Herbert  32:45
Again, I think that’s something that comes with practice. The first time you look at crime scene photos, particularly in a gory case, or, even worse, the autopsy photos, the first time you do that, of course it’s going to impact you. I don’t think you’d be human if it didn’t. But the thing is, it becomes part of the job. So it’s just part of the bundle. It’s not the most enjoyable aspect of the job, but it’s just something that you have to do. So when you go through and you read the witness statements, you’re also looking at the photos, you’re also watching videos, and these days, a lot of this is actually captured on camera. So often you’ve got either CCTV or somebody phoning on their iPhone. So yes, there are many instances in which you see things that are unpleasant, but I think you just learn how to deal with that. And after a while it becomes easy. You look at it as just part of the work.

Adam Hugill  33:37
She’s starting to look at it through sort of barristers eyes, and this is the job, rather than sort of taking on board, on an emotional level, what it is you’re viewing.

Elizabeth Herbert  33:47
That’s the aim. I mean, you always, of course, have some cases that resonate, or perhaps make you a little emotional, but you have to sweep that aside and focus on your job, because that’s when you’re going to be at your best as an advocate, and that’s when you’re going to be representing your client at your best. So that’s why it’s important to be able to have that distance. And it also helps to have a good work life balance for that as well. If you’ve had a really hard day, it helps to come away and do whatever you love in your spare time, whether it’s going for a hike or spending time with your family and friends, and to just have that distance and remember that it’s not all dismal and about the work.

Adam Hugill  34:29
Indeed, well, outside of work, the two of us are both involved in Hong Kong community theater, so you did fulfill your dream of being an actress about six years ago, Alfred and I decided to, if you like, break away and set up our own law firm, which was a huge move, and something which I’m very pleased I did with hindsight, but it was very scary at the time. You’ve been through a very similar journey yourself. About three years ago you broke away from your chambers and set up a new chambers with David Boyton, Pegasus Chambers. Could you let us know why you decided to do that?

Elizabeth Herbert  35:10
There were many, many reasons behind it, but largely David and I just shared a common ethos and this idea of wanting to create a place where juniors could thrive. So with more of a focus on the junior bar, we wanted to create an atmosphere in in the place where juniors could come and talk to you about their worries, about their cases whenever they needed to. And that just helps sometimes, just having a sounding board or someone with experience to talk you through something, and not even necessarily receiving advice, but being able to say something out loud and process your own thoughts, and knowing that there are other people going through or that have been through the same thing you have. So we wanted to create a nurturing environment for juniors, and we also wanted to create opportunities for them, which is why David Boyton started the mentorship scheme at Pegasus, which essentially means that when you’re newly qualified with us, you can choose to follow either David or I as junior in your first three months of practice.

Adam Hugill  36:15
I think that’s wonderful, because one of the things which always terrified me when I was looking at the bar many, many years ago, when I was deciding which path to go down, (I didn’t know you were…) I was, was the isolation that you have as a barrister. You’re very much on your own, you’re self-employed. You have to generate your own work and then essentially, work on those files somewhat independently, very, very different to a solicitor, where, as a junior, you’re very much nurtured through the ranks. As you become more and more qualified, you sort of gain more responsibility and the supervision lifts, etc. But in the barristers and lawyers have been quite good at sort of modernizing and sort of getting with sort of the modern times in terms of sort of technology, work/life balance and things like this, with international law firms leading the way. But in my experience, barristers chambers do tend to be slightly more sort of leather bound books and dusty fuddy duddy environments to work in. So it’s very exciting that you’re trying to sort of bring a new aspect to the bar.

Elizabeth Herbert  37:28
Yes, that was the aim. I mean, we wanted to be as far from a traditional set as possible. Not that there’s anything wrong with that, but it just wasn’t us. So, we just wanted to create somewhere that was a bit friendlier, and where people could openly discuss things. Of course, keeping everything about their cases confidential, but in general terms, just having other people to talk to that are going through similar things is of huge assistance.

Adam Hugill  37:54
And I’ve been to your chambers. The way that your chambers is put together, very much is in or very much consistent with that. You have the huge open plan areas and the sort of collaborative working spaces, which I don’t think I’ve seen any of the barristers chambers.

Elizabeth Herbert  38:06
Oh, it’s definitely unusual, but it was a decision that we knew we wanted from the start in order to create the atmosphere that we wanted, where we’re sort of more like a family than separate barristers.

Adam Hugill  38:19
To wrap this up and to wrap up the barrister season completely, can I ask you this question, either, what would you advise, sort of the junior barrister or the person wanting to be a junior barrister today? Or what advice do you wish that you’d received when you were starting out on this journey?

Elizabeth Herbert  38:37
What advice do I wish I’d received? I don’t know. Maybe don’t beat yourself up so much. I think it’s very easy to be hyper critical of yourself and to always pick at what you’re doing. You know, in your own mind after you finish a case or whatever, because this job, like no other, leaves you with that sense of you know, when you exit the room, you just think, ah, that would have been a nice way to phrase that, or I could have asked this additional thing or things just keep coming to you, because it’s not a static sort of job. And I wish that someone had just told me, you know, all you need to do is do your job. Do the best you can. If you’re well prepared, you will be fine. Don’t pick at yourself so badly.

Adam Hugill  39:20
Thank you very much. That’s excellent advice. Thank you very much. Elizabeth Herbert for joining us on the final leg of the HIP talks.

Adam Hugill  39:28
Thank you for having me!

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