About Solicitors

Barristers and solicitors have different roles. 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. In many cases you need both a barrister and a solicitor but there are some situations where only a solicitor is needed. For over 200 years, up until 2004, you could only engage a barrister through a solicitor but it is now possible, in some cases, to engage a barrister directly. However 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 so if you are engaging a barrister direct you have to do any "solicitor work" required. It may be wondered how a client could possibly carry out "solicitor work" since solicitors have extensive training. The short answer to this question is that the amount and complexity of solicitor work necessary varies from case to case and some simpler "solicitor work" does not actually need to be carried out by a solicitor - that is why, incidentally, firms of solicitors as well as employing actual qualified solicitors also employ staff at various levels who are not solicitors. The sort of work which is done by a solicitor's firm is explained below and examples are given of where work could be carried out by the client themselves if they were engaging a barrister direct. These are just examples as every case is different.

For the purposes of explanation the work of solicitors, in civil cases, can be divided into five overall areas:

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


Transactional work

The work of solicitors in relation to transactions such as buying or selling land, making a Will, creating a Trust, creating a company, or entering into a commercial contract is called "non-contentious" work. What all these transactions 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 legal complexity.


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).         



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.

There are two main reasons why barristers do not collect evidence. Firstly there can sometimes be a dispute about the collection of evidence. The contents of a webpage may have been "printed" to a PDF as a snapshot of what that webpage contained on a particular day. If there is a dispute about the date the snapshot was taken, the person who took the snapshot may need to give evidence about when they made the PDF "print". A barrister cannot act as an advocate in court as well as being a witness and if a barrister had collected the evidence themselves by taking a snapshot of the webpage they might be called as a witness which would mean that they could not act as advocate. The second main reason why barristers do not collect evidence is that, depending on the case, it can be very time-consuming and barristers need to concentrate on their core skills - advocacy, legal drafting, and legal advice - in order to maintain their expertise.        

Having said that barristers do not investigate, that is a slight over-simplification because barristers do, of course, ask their clients questions, and that  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 core meaning of Conduct of Litigation is the co-ordination of the overall process of litigation particularly the taking of formal steps such as filing key litigation documents (such as pleadings) with the court (or tribunal) office and serving them on the other side by the deadline dates required by the court/tribunal, but included here is also such things as searching for documentary evidence (such as emails, letters and photos) which may help to shed light on the issues which are disputed in the litigation, and providing copies of those evidential documents to the other side, a process known as Disclosure of Documents. 

A barrister can advise on what subset of documents (out of those documents disclosed by each side to the other) should be used at the eventual trial but the search for relevant documents at the prior Disclosure of Documents stage (out of which the subset of documents to be relied on at trial is selected) is part of the Conduct of Litigation carried out by solicitors.

The Conduct of Litigation is something which, if a client engages a barrister direct - without also engaging a solicitor - the client has to do themselves. In some cases this is possible but in other cases a solicitor will be required: it depends on the nature of the case. In some cases there are not likely to be very many relevant evidential documents and the issues in the case are such that the relevance of those documents is likely to be apparent to the client so that the client can deal with the Disclosure of Documents process.  

But in other cases - particularly cases where there have been a large number of emails between the parties to the dispute which could be relevant but the relevance of which may not be apparent to a non-lawyer (such as in many business and employment disputes) a solicitor will be required.   

Another example where a solicitor would be required to deal with the conduct of litigation 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 may be 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. 

In some types of case the court/tribunal may grant permission for evidence to be given by an expert witness. The expert witness is given "instructions" - i.e. what questions the expert is asked to answer and give an opinion about - by the solicitors at the outset, but this can be an iterative process with the solicitors reading the expert's draft report and commenting on it. An expert has to give their true opinion but in the light the expert's draft report it may be apparent to the solicitors that there are further questions which need to be answered before the report is finalised, or the expert may take the initiative and ask for further instructions in the light of matters which become apparent whilst they are examining the subject matter. Although it depends, to a degree, on the subject matter in most cases where there is an expert witness solicitors will be needed. 

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.     

When, during the process of litigation, there is a court or tribunal hearing it is usual for – and normally the court/tribunal rules require – a "hearing “bundle” to be produced for the use of the judge, the barristers, and witnesses at the hearing. 

The hearing bundle contains all the documents which are, or may need, to be considered by the judge at that hearing and typically includes formal litigation documents such as pleadings, past court/tribunal orders, witness statements, and documentary evidence such as letters, emails, agreements, photos, form the past which help to shed light on where the truth lies in the matter in dispute.

Traditionally the hearing bundle is produced in hardcopy form – identical copies for the judge, each side’s barrister, and for the witness box – with each page numbered and an index at the front listing every document in the bundle with its page number. Nowadays the court/tribunal will often require a PDF copy of the hearing bundle to be provided as well, identical to the hardcopy and containing PDF “bookmarks” for each document. Even if the court/tribunal does not require a PDF copy it is invariably easier for the solicitor’s firm to produce the bundle first in PDF form using software such as Caselines DCS and then to print hardcopies from the PDF rather than create hardcopies using the old typewriter/biro/photocopier method. So most solicitors use DCS or something like it.

Systems such as DCS automatically generate a complete paginated bundle with an index listing all documents (the name in the index for each document is the name given to the document when it is previously loaded to the Caselines DCS system) but it still requires human effort to mark up the margin of witness statements within the bundle with the page numbers of the documents referred to.

So a client engaging a barrister without a solicitor could use a system such as Caselines just as a solicitor would have done, as long as they have the time and dedication to do things such as marking up.


Document Management 

Document management is a key part of the work of a solicitor, both in the initial investigative stage and after proceedings are issued (when it can be considered as part of the "conduct of litigation"). In order for the services of a barrister to be used efficiently a barrister should be provided only with relevant documents.

At the outset it is important that steps are taken to preserve all documents which might be relevant evidence. At this early stage a fairly wide view is taken of what might be relevant. The next stage is to take advice from a barrister about the prospects of success in various kinds of potential legal action and as part of this process (a) some key relevant documents may be identified, and (b) some documents may be considered and deemed to be not obviously relevant to the particular legal case which is to be advanced. 

As the litigation process proceeds it will at some stage be necessary for documents not so far considered in detail (i.e. those not in category (a) or (b)) to be considered. This might consist in reviewing every document not so far considered or, if there are thousands of such documents, some form of initial selection, such as keyword searching, may be used to "cull" some of the documents so that only a subset are reviewed in detail for relevance. It is possible that searches may be carried out in public records and/or potential witnesses may be asked whether they have relevant documents. This process will result in some further documents being identified as relevant and some other documents being deemed not obviously relevant.

However the question of which documents are relevant needs to be kept under review as the litigation process unfolds because an issue which was thought not to be in dispute between the parties might turn out to be disputed - potentially making some documents previously not deemed relevant now seem relevant - or an issue in dispute might be conceded by one side making it no longer in dispute meaning that some documents previously deemed relevant no longer are. 

Sometimes a document deemed not obviously relevant unexpectedly becomes relevant when another document is being considered. Take the example of a dispute about a right of way. Whether a certain route has been used, as of right, for at least 20 continuous years in the past may be relevant to whether a right of way exists, and whether a made up track existed over that route at particular times in the past may therefore be relevant. Correspondence indicating that a water tower (some distance east of the route and not accessed by it) was built in 1925 would be, on the face of it, irrelevant. Likewise correspondence indicating that a radio mast was erected in 1950, some distance further east, would also seem irrelevant. But suppose some old photographs come to light, taken looking east and showing the track. Any photo in which neither the water tower nor the radio mast can be seen must have been taken before 1925. Any photo showing the water tower but not the radio mast must have been taken between 1925 and 1950, and any photo showing both must have been taken after 1950. So it turns out that the correspondence, previously thought irrelevant, happens to be relevant, in combination with the old photos, because it helps to date the photos and thus shed light on the question of for what period of time the track was made up and, presumably, used.

It is part of the work of a solicitor to not only provide the barrister with those documents in the possession of the client which are relevant (and provide copies, at the appropriate time, to the other side in accordance with the court's/tribunal's directions for disclosure) but also to preserve and keep under review those documents not currently believed to be relevant to disputed issues in the case, but which might become relevant depending on how matters develop. If a client does not engage a solicitor then the client themselves has to carry out this document management function typically loading identified relevant documents to the DCS Documentary Evidence case for the use of the barrister, and keeping other documents - those not currently obviously relevant but to be kept under review - in cloud storage to be copied to DCS if developments make them relevant after all. It is convenient to use cloud storage for this purpose because whether a document is legally privileged affects whether it has to be disclosed to the other side if it becomes relevant, and if the advice of a barrister is sought on the question of whether a document is privileged it is easy for a link to the document on cloud storage to be provided to the barrister. Whether the client is able to do all this document management work themselves will depend partly on the client, partly on the number of documents involved, and partly on how complex the legal issues in the case are which affects how easy it is for a non-lawyer to determine whether any particular document is relevant or not.                            


Enforcement of Court Orders

At the end of a court (or tribunal) case the judge decides which party wins and then makes an order reflecting that decision. For example, if the judge decides that the Claimant does have a right of way over a route which the Defendant has blocked, the Defendant may be ordered to remove the obstruction. Or if the judge decides that the Defendant has breached a contract and that that has caused loss to the Claimant then the Defendant may be ordered to pay a sum of money in compensation. In most cases, in addition to these types of order about the substance of the case, there will be a further order that one party - generally, but not always, the losing party - should pay the other party's legal costs. 

Usually a party will comply with the court's order without being forced to do so but if any enforcement is necessary, the other party has to initiate it - the court does not enforce automatically but only at the request of the other party. Normally the winning party which seeks to enforce an order would engage a solicitor to carry out this work because it is not always straightforward. For example there are a number of different ways of enforcing an order for payment of money and some may be more effective, in a particular case, than others. 

Although some interim orders may be made part way through a case normally the question of enforcement only arises after the final order has been made at the end of the case so, if a solicitor is required for enforcement work, that would be essentially a separate matter after a barrister, instructed on a direct basis, has finished their work.


Choosing a firm of solicitors

Solicitors in England are regulated by the Law Society through the Solicitors Regulation Authority. The Law Society website contains a list of all solicitors which can be searched by location and areas of law they cover. The Solicitors Regulation Authority website contains some information about choosing a firm of solicitors. 

If a barrister advises you that you need to engage a firm of solicitors, you can ask the barrister to suggest a suitable firm and a barrister may recommend a firm, or a shortlist of firms, which appear to them to be competent, but barristers are normally reluctant to go beyond this and give views on who might be the "best" solicitors. There may be a number of reasons for this but here are some of them. First of all, a solicitors' firm is an organisation. A barrister engaged by a particular solicitor in a firm, on a number of occasions, may have formed a generally favourable view of their work. But it does not follow from that that if the barrister were to suggest the firm to you that when you engage that firm the same solicitor would be doing the work. Also in virtually every case there will be more than one solicitor involved. There are different levels of solicitors, and other fee earners, with different hourly charge rates, and work within a case which is not considered to require the expertise of a senior solicitor will be done by a more junior solicitor, legal executive, trainee solicitor or paralegal. This is apart from the fact that a different solicitor at the same level may do work on the case for logistical reasons - e.g. become someone is on holiday, or simply to balance out workloads. So it may be that the work which the barrister formed a favourable view about was actually done not by the solicitor engaging the barrister but by one or more other people in the firm. 

If you have friends who have used solicitors, you can ask them about their experiences but, again, their experience, be it good or bad, may have been the result of work done by a particular fee earner who did work on their case (not necessarily a fee earner they have ever met or spoken to) and the fee earner(s) who do work on your case, if you were to engage the same firm, may be different. Bear in mind also that the outcome of your friend's case is not solely determined by the skill and care of the solicitors. Someone may go into hospital for a routine operation and have an entirely successful outcome despite being operated on by a surgeon of less than average skill; someone with a serious illness diagnosed late may have a poor outcome despite the dedicated work of the most skilled surgeon. It is the same with solicitors.

 

Disclaimer

The above explanations are designed to try to answer the question of how it is possible for a client to carry out "solicitor work" in some cases (so that a barrister can be engaged direct) and when a solicitor will need to be engaged. Some specific examples where a solicitor will be needed are listed here but no two cases are exactly the same and the explanations given are necessarily of a general nature and you should ask the direct access barrister you engage to advise you whether a solicitor will need to be engaged in your particular case.     

This page was lasted updated in August 2019          Disclaimer