About Solicitors

Barristers and solicitors have different roles. In many cases you need both but there are some situations where only a solicitor is needed and, since 2004 when direct access to barristers became possible, sometimes you only need a barrister.

Barristers represent clients in court or before tribunals. They also draft the pleadings - documents which define the general assertions and argument which will be made before the court/tribunal at a trial. And they give legal advice based on their knowledge of the law and their experience in arguing cases in court/tribunal.

The work of solicitors is more difficult to describe but for the purposes of explanation it can be divided into five overall areas:

  • Transactional ("non-contentious") work
  • The general management of a client's affairs
  • Investigating and collecting evidence
  • The conduct of litigation
  • Advising on and arranging insurance   


Transactional work

Transactions such as buying or selling land, making a Will, creating a Trust, creating a company, or entering into a commercial contract are called "non-contentious". What all these things have in common is that there is no legal dispute (though there may be negotiation and bargaining over the price and other terms in the case of a commercial contract or sale of land) but even if the transaction might be in essence quite simple, there are certain legal formalities which are either required by the law (e.g. in the case of making a Will, buying/selling land, or creating a company) or are good practice (e.g. in the case of most commercial contracts). A solicitor would be the first port of call for such transactions and normally the solicitor would be able to draft the documents and carry out the formalities without needing to consult a barrister though a barrister might be engaged by the solicitor in cases of particular complexity.


The general management of a client's affairs

The figure of Mr Tulkinghorn in Charles Dickens' novel Bleak House gives the idea of someone engaged on the general management and conduct of a client's affairs. Of course the author uses exaggeration and caricature for dramatic effect in this fictional novel but the overall idea of a troubleshooting solicitor engaged on proactively looking out for the interests of a member of the landed gentry - and not limited to matters specifically raised by their client - reflects this traditional aspect of solicitors' work.     

As well as wealthy individuals, many commercial and other organisations will have solicitors (either solicitors in private practice engaged by the organisation or in-house solicitors) whose role includes looking out for the wider interests of the organisation - working with its senior management and perhaps also with public-relations and marketing consultants - as well as carrying out specific legal work. Take the example of a retailer which suffers, or is in danger of suffering, reputational damage and loss of sales because, contrary to its contract with an overseas supplier, the supplier is using harsh employment practices. The retailer could make a legal claim against the supplier (as well as not renewing its contract with the supplier when it comes to an end) but the result of winning such a case may, however, be further reputational damage in that the retailer will be seen to be profiting from the situation and not helping the overseas workers who lose their jobs (and will presumably then be worse off compared to their previous employment even taking account of the harsh practices). The retailer's preferred solution to the problem may be to persuade the supplier to improve its employment practices and agree to a further supply contract which has some clauses to make sure the supplier does immediately cease the objectionable employment practices. But that depends on the supplier agreeing. So litigation might be threatened or even commenced but more with a view to bringing the supplier to the negotiating table, than with actually proceeding to trial, with a close eye being kept all the time on the effects on the organisation's reputation. So conduct of the litigation will be in the wider context of negotiation, and conducting correspondence, and the general management of the organisation's public profile.


Investigating and collecting evidence

At a trial, a judge decides which side wins based on the evidence and on the arguments of the barristers representing each side. The judge does not collect evidence and it is up to each side to obtain evidence and present in to the court/tribunal in an orderly way in accordance with the rules and it is the role of the solicitor to investigate and collect evidence.

Since 2004 it has been possible to go direct to a barrister and not engage a solicitor at all for litigation but this is on the basis that the kind of work carried out by the barrister remains, as before, advice, legal drafting, and representation before a court or tribunal, and not investigating and collecting evidence which is the role of solicitors. If a client does not engage a solicitor then the client themselves must be able to do any work which would have been done by a solicitor. It may be wondered how a client could possibly carry out "solicitor work" since solicitors have extensive training. The answer is essentially that how much solicitor work is needed in a case varies from case to case.

Having said that barristers do not investigate, that is a slight over-simplification because barristers do, of course, ask their client questions which might be classed as investigating, but if that is the only investigation which is required (apart from searching for and collecting documents such as photos, past letters and emails, and contracts which the client themselves may be able to do) then a solicitor may not be required. In many cases which are not factually complex a barrister can ascertain the relevant facts from the client in a one or two hour conference (often combined with a site visit if the case concerns land) particularly if the client has provided a written summary in advance. Although the law may be complex, in many cases the facts are relatively straightforward.

Sometimes, although the facts are complex, the legal rules applying to the situation are such that it is still possible for a barrister to establish the relevant facts in a one or two hour conference. For example if the law requires a certain type of transaction to be done by a formal legal Deed, and the law allows only a few, quite restricted, exceptions to that rule, then even if the totality of the facts are very complex it may well be that the legal framework means that the client only needs to be asked about a quite limited subset of those facts so that this, again, is something which a barrister, instructed direct, could do in a one or two hour conference. This could be the case for, for example, a dispute about a private right of way.

But in many factually complex cases, including employment disputes and commercial cases involving contracts, the law allows many different types of facts to be taken into account. For example, the essence of "discrimination" in an employment case is treating someone less favourably for an impermissible reason and in principle any actions or words occurring in the employment context could be relevant to whether there has been less favourable treatment and may shed light on what the reason for it may have been. And the right not be to discriminated against is not the only employment right - there are many others - so an employee or employer client will have a great deal of information about what happened day in and day out in the employment setting and it needs a solicitor with understanding of the many different employment rights which exist under different pieces of legislation to interview the client using their legal skill and home in on the legally important information as various possible "angles" are suggested by what the client recounts. This can also be the case in commercial disputes because even if there is a formal written contract the words and actions of the parties and their employees, over the weeks, months, or years when the contract is being performed, can give rise to a "variation" of the contract, or there may be questions of "waiver" or "estoppel". And particularly in the case of contracts for the provision of services of various kinds, the quality of the service provided, and whether it meets the standard required by the contract (which may be specified or implied in general terms such as "reasonable care and skill"), if in question, are matters which may require detailed examination of what happened on many different occasions.

So normally a solicitor will be needed to investigate in an employment or a commercial case but every case is different. For example take a client which has provided services but had not been paid (in a "won't pay" rather than a "can't pay" case). The client may be required by the pre-action protocol to send a Letter of Claim before issuing proceedings and the other party will be required to respond in a certain level of detail to the Letter of Claim giving their legal justification for not paying. It may be that, even though the totality of the facts about the dealings between the parties is very complex, the points of dispute, as revealed by the pre-action correspondence, are much more limited so in that in that particular case it is possible for the relevant facts to be ascertained by the barrister in a one or two hour conference with the client. But in most commercial cases a solicitor would be needed, at least at some point, to investigate and collect evidence.       


The conduct of litigation

The term "conduct of litigation" refers not so much to the key elements of litigation such as collecting evidence, drafting pleadings, and representing the client in court/tribunal but to the general management and co-ordination of the litigation process. As a minimum "conduct of litigation" means providing an address to the court/tribunal, and to the other side, for service of documents, and serving/filing formal documents at the court or tribunal office and on the other side before deadlines and in a way which is valid under the rules. This is something which, if a client engages a barrister direct - without also engaging a solicitor - the client has to do themselves, which most reasonably efficient clients are able to do. However, depending on the case, there may be other tasks which the client cannot easily do which come under the general heading of "conduct of litigation" and in these cases a solicitor is required. 

One example would be where a client is considering bringing a claim together with other people who they do not normally work closely with. A solicitor can handle money and receive (and chase) everyone's agreed contribution to fees. In addition, and most importantly, a solicitor, who will be conducting the litigation which includes handling all correspondence, will be alive to possible conflicts of interest as they arise. People who bring a claim together will have a common interest in the claim succeeding but sometimes conflicts of interest may arise where, despite the common interest, there is some development, and some decision to be made, where the interests conflict. This may be a major conflict or it might be a minor conflict. If it is a minor conflict the parties can still continue to be represented together (and continue to share costs) providing everyone gives their informed consent. A solicitor managing the case and dealing with the day to day correspondence will be able to recognise when a conflict arises, or may be about to arise, and discuss with their clients how they wish to proceed.   

Of course many claims are brought by people who already work closely together: a couple who are joint owners of a house may bring a claim against a neighbour, partners in a business may jointly sue a supplier, etc. In such cases they have already decided to live together and have the benefits and burdens of property ownership together, or to undertake the risks and profits of a business together, before any litigation was in prospect, and in this case there is little chance of a conflict of interest arising, but where people who do not normally have a "common purse" are brought together only because of litigation then a solicitor will be needed to manage the conduct of the litigation.    

People bringing a claim together who do not normally work closely together may be concerned that if they leave it to one of their number to, for example, ensure that documents are delivered to the court/tribunal/the other side on time and in a way which is valid, their claim could be barred by someone else's mistake or lack of diligence, so for this reason also a solicitor is needed to ensure that everything is done correctly and on time. 

Sometimes it is possible to agree that work will be done on a no-win-no-fee basis. This is not always possible, and where it is possible there are pros and cons, but for present purposes the point to note is that this is also a circumstance where a solicitor is required to ensure that the case is not lost on a technicality through a mistake such as serving documents by an invalid method. A barrister who agrees to do work on a no-win-no-fee basis will be taking the ordinary risks inherent in litigation but will not want to run the additional risk of the case being lost, and therefore the barrister not being paid, because of a mistake by the client over a technical matter such as the valid serving of documents, so a barrister would not normally agree to do work on a no-win-no-fee basis unless a solicitor was engaged to conduct the litigation.      

Similarly if an insurance company is funding litigation the insurance company has an interest in the policyholder winning their case and being awarded costs - because that reduces the amount the insurance company has to pay out - so the insurance company will want a solicitor to be engaged to conduct the litigation and ensure that the case is not lost through a procedural mistake. The same applies if a case is funded by Legal Aid.     

These are just some examples where the solicitor work involved may extend beyond tasks which the client could perform themselves and where solicitors would need to be engaged as well as a barrister. Some other examples are explained here.       


Insurance

Arranging and administering insurance - technically known as "insurance distribution activities" - is a regulated activity (regulated by the Financial Conduct Authority). Solicitors (but not barristers) have an exemption which allows them to arrange insurance in connection with their usual activities as solicitors. 

For example, if a householder wishes to build an extension to their house they may find that restrictive covenants, apparently preventing them doing so, are registered against their Register of Title at the Land Registry. The fact that a restrictive covenant is registered does not prove that it is valid - it just means that if it is valid then it is binding. Ascertaining whether a restrictive covenant is valid and which neighbouring landowner can enforce it is not always straightforward and there are three alternative strategies which can be adopted: (a) attempting to find out who may be entitled to enforce and contacting them and negotiating with them (b) applying to the Lands Chamber for the discharge/modification of the restrictive covenant - a process which involves advertising the application (c) doing neither (a) nor (b) but rather obtaining insurance to protect against the possibility that after the work is complete someone comes forward claiming to be entitled to enforce the restrictive covenant. Generally (c) will be considered first because insurers may decline to insure (or may require a higher premium) in cases where the client has done (a) or (b) because doing (a) or (b) increases the risk of someone making a claim. So generally a client in this position will consult a solicitor who will be able to advise on the insurance option (c) with a barrister being instructed later if, in the end, it is decided to pursue (a) or (b) instead of (c).         

  

This page was lasted updated in May 2019          Disclaimer