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Devilish times at the heart of Scots law

23 July 2020

Glasgow-born Fergus Whyte – believed to be the first New Zealand qualified lawyer to be called to the Scots Bar – couldn’t wait to stop devilling and enter a ‘stable’.

Fergus’s pupillage ended when he was called to the Scots Bar in Edinburgh on June 26.

“Pupillage here goes by the fantastic name of devilling. The terminology is quite fantastic, it’s quite funny explaining what a devil is,” says Fergus.

NameFergus Whyte
BornGlasgow
Age33
Entry to lawGraduated BA (Honours in French) and LLB (Honours) from Otago University in 2010, and LLM (with distinction) from Edinburgh University in 2016
WorkplaceSelf-employed advocate (barrister) practising from Arnot Manderson Advocates, Edinburgh
Speciality areaCivil litigation.

“Devilling is about following around a practising advocate, doing the work they do, drafting pleadings and opinions, going along to consultations, meeting solicitors who are instructing your devilmaster and meeting clients. You turn up in court and watch, and get a read on the personality of the judges.”

Fergus Whyte

Devilling in Scotland is unpaid and fulltime and Fergus has been able to do tutoring at Edinburgh University to earn some money on the side. “But it is effectively your full-time occupation.”

He says there are two ways of re-qualifying. “You can get a Scottish law degree or the faculty sets its own examinations in Scots law. It will provide you with a two-page syllabus and it’s your job to go off and study and look at previous exam papers and teach yourself the subjects.

“I was requalifying by doing the examinations through the faculty. Between that, working and coaching one of the Edinburgh University mooting teams for four years, I did not have a lot of free time for four years.”

The intake of devils in a year is usually relatively small, usually about eight to 15 people, but Fergus was in an unusually large intake of 26.

“In the English system you do the Bar Professional Training Course (BPTC), which costs you between £15,000 and £20,000. You then have to complete a further period of pupillage in a chambers. In the English system you pay for the course and you are paid a stipend for pupillage, which varies from chambers to chambers.

“Unlike the English system, if you make it through devilling in Scotland you will find a place in a stables eventually, whereas in the English system you have the further step of tenancy applications and reviews and all of that.

“Here, the Faculty of Advocates is quite a collegiate body so there is a commitment to find a place for a devil as they make it through the process. It is a better process. I have known people who have gone through tenancy interviews and tenancy applications in England and the whole process down there sounds very brutal and competitive.”

France and Spain

Coming to New Zealand with his family when he was eight, Fergus attended Auckland Grammar School and Otago University.

His parents are both doctors in Auckland; his father Kenneth is a respiratory medicine specialist and his mother Colette is an anaesthetist.

Fergus is the oldest of five. Brother Gregor – “who did law but didn’t fancy it enough after completing his degree” - is a management consultant in Melbourne, sister Imogen is a junior doctor in London, brother Magnus is an IT procurement consultant in Auckland and sister Kelly a health care researcher in Christchurch.

He spent a year in Lyon, France, as an Otago exchange student at a university, studying a mixture of French domestic law and international law, and four months in Granada, Spain.

After qualifying, Fergus was a judges’ clerk - “for two very interesting years just out of university” - at Auckland High Court for Justices Douglas White, Mary Peters, Mark Woolford and Associate Justice Roger Bell.

From there he joined boutique firm Lee Salmon Long. “It was interesting work for someone starting out and they gave juniors a lot of opportunity to be in court, which was also fun.”

“After two-and-a-half years I wanted a break and decided to do a Masters degree abroad. There were a few places I considered and one was Edinburgh. In the end, I did my Masters there but was not sure what to do next.

“The Scots legal profession is split between solicitors and advocates and the closest analogue would be the Bar in England.

“Advocates are all independent and in Scotland are grouped together in stables rather than chambers.

“As someone who was fully qualified in New Zealand, I asked the Law Society of Scotland what I would have to do to qualify in Scotland, and also asked the Faculty of Advocates, but I don’t think either of them really knew quite what I needed to do.”

Fergus says some European lawyers have gone through the process of qualifying for the Scots Bar, but as far as he knows he is the only person who has come from New Zealand to try to get into the faculty.

Because there is a much stricter regime of rights of audience in Scotland, Fergus needs to be in the Faculty of Advocates if he wants to be in court on a regular basis.

“Solicitors here have the right to appear in the Sheriff Court (equivalent to the District Court) and if you do a special course you get rights of audience in the higher courts and become a solicitor advocate but it is very much focused towards the Bar in terms of courtroom work.”

Stables vs chambers

The Scottish Bar is small, with only about 450 advocates, and a lot more civil court work is focused in Edinburgh.

“But the Scottish Bar is a bit more free form. For example, in London people tend to have chambers - physical structures - whereas stables here are more virtual chambers.

“There is a clerk’s room where clerks are based but other than that you are free to work from wherever you want. In practice that tends to mean people work from one of the law libraries.

“For the most part that means working from the Faculty of Advocates library in Parliament Hall (the former seat of the Scottish Parliament prior to 1707) in Edinburgh, where the courts are based, or they work from the Procurators’ library in Glasgow, or a café.” Fergus tends to work in the Faculty library.

“In the Scottish system you don’t pay anything for any of the training but you have an eight to nine month period when you are a devil where you are not earning anything.

“And once you set up in practice there are going to be a few months before you get instructions or before you get paid for instructions, so it is something you need to budget for ahead of time. The faculty has in recent years tried to up the range of scholarships it offers to ensure there is greater access.

“I want to stay here and work and build up my practice. It has been a lot of work getting to this point. The first few years involves a bit of hustling until people get to know who you are, so I will see how that goes.

“As with any system, there are both good things and bad things about the Scottish legal system and it is interesting being someone who straddles the fence that way. There are some things New Zealand does a bit more quickly and cleverly but the opposite is also true. I try to keep an eye on what’s going on in the New Zealand legal scene. I’m not saying I’ll never return but at the moment I am firmly focused on seeing how things go here.”

Fencing

A competitive fencer at high school and university, he had to drop it this year for budgetary reasons. “Everything breaks all the time and the gear budget doesn’t exist but I’m hoping to get back into it.”

He says Edinburgh is easy to cycle around and cycle across. “I have my bike and try to get round a bit. There is a city car hire scheme where you can pick up a car for a couple of hours if you need one. You can get along pretty well in Edinburgh without a car. There is a good bus service.”

“I think music teachers would say I was their worst student because I am tone deaf, but I like going to gigs.

“When doing my Masters degree I did a show on the student radio station about New Zealand music called Long White Noise, which was good fun. I like Fly My Pretties, French for Rabbits, and The Bats. As part of the radio show I interviewed Robert Scott from The Bats, as a rank amateur radio journalist, which was interesting.

“With Glasgow only 45 minutes away on the train, you can go to see a gig and get the late train back. And for a city of its size Edinburgh punches above its weight as a capital city for music. It’s a nice city.

“I’ve been reading Neil Gaiman’s American Gods for the third or fourth time – it’s a superb piece of work. And British record label owner and co-founder of Factory Records Tony Wilson’s 24 Hour Party People.

“I have recently started re-watching Red Dwarf and an older French television series called Spiral.

Spiral is a police procedural and legal drama following the work and private lives of Paris police officers, lawyers and judges at the Palais de Justice.

“I also like French supernatural drama television series The Returned. The music for that was composed by Scottish post-rock band Mogwai, so there is a nice crossover.

“Baroness Brenda Hale, former president of the Supreme Court of the United Kingdom, sounds like she would be a fun dinner guest. I saw her talk twice at Otago.

“Tony Wilson, the music producer, and American composer and pianist Philip Glass would be interesting guests.

“The last dinner party I managed to host involved martinis, home-made tortellini and home-made focaccia, most of which was successful. A good strong martini is quite tasty.

“Winston Churchill had a quote about the proportions that should be in a martini. I think he said the shadow of the bottle of Campari should only ever pass over the gin.”

Fergus was initially drawn to work in foreign affairs with his law and arts degrees “but I ended up liking law and the litigation side of it more than I anticipated”.

“Foreign policy would be a fun alternative career to go into. I have a friend in the Ministry of Foreign Affairs and Trade in Mexico City. Or possibly investigative journalism, which sounds similar to being involved in litigation in some respects.”

Last updated on the 23rd July 2020