Do I need a Barrister or a Solicitor?



In the great majority of civil cases you can go straight to a barrister but in some circumstances you will need a solicitor as well. 

Generally speaking those types of cases where you need to engage a solicitor are cases where there are schemes available to help you with the cost. For example it is regarded as being so important that innocent people should not be wrongly convicted of a serious crime that the Ministry of Justice, through the Legal Aid scheme, ensures that not only are criminal defendants represented at trial by a barrister but that a solicitor is engaged to ensure that there is a consistent quality of investigation and preparation in the months leading up to the the trial and the defendant does not have to try to do this themselves. Legal Aid to pay for the costs of both barristers and solicitors is also available in family cases involving the care of children or involving vulnerable adults.

In most civil cases the Ministry of Justice takes the view that its role is limited to providing courts and tribunals with efficient and fair procedures which citizens can use to settle their differences to the extent that they choose. However in a few types of civil case, where the outcome might cause the loser to need help from the public purse (e.g. if the loser is rendered homeless and has to be rehoused at public expense) Legal Aid to pay for the costs of both a barrister and a solicitor is available. Legal Aid is therefore available in, for example, landlord and tenant disputes if you are the tenant, and bankruptcy cases if you are the debtor. Legal Aid is not generally available in personal injury cases but instead there are special rules designed to protect the claimant against adverse costs orders if they lose so that it is normally possible to find a solicitor who will take on a personal injury case on a "no win no fee" basis.  
     


 Type of case Why a solicitor is normally needed
Buying/selling a property or landBuying property involves arranging for the transfer of money, both from the buyer and from any lender such as a building society, simultaneously with the transfer of ownership to the buyer subject to a charge in favour of the lender. If there is a chain this must happen to all properties in the chain simultaneously. This requires money to be held in escrow or in a client account. Only solicitors operate client accounts  (barristers never handle client money which is one reason why their regulatory and insurance costs are much lower) and although a barrister could provide conveyancing services with the money being held in escrow very few barristers provide this service.

Personal injury claim by youThere are special costs rules which apply in personal injury cases which mean that many claims can proceed on a "no win no fee" basis, but a solicitor needs to be engaged to operate the "no win no fee" system. The solicitor will, in turn, engage a barrister to draft pleadings and represent the client at trial.  
Landlord and tenant disputes if you are a residential tenant

If you are homeless and need help from the council which is not forthcoming

If you have special educational needs which the council is failing to meet

If you are an individual and a creditor is trying to make you bankrupt

Claims against you for debt which could mean you will lose your home

If you are an individual and you want to bring a Judicial Review claim against a public body

Depending on your financial circumstances, Legal Aid may be available and, if so, you would need to engage a solicitor as the Legal Aid rules require a solicitor to administer the system and collect payments from the Legal Aid Agency, contributions from the client, and to receive and deal with a charge over any property gained or preserved by the action.The charge is used to ensure that the Legal Aid Agency is paid back out of the money/assets recovered/preserved - the client only receives the balance (if any). However if the money/assets recovered/preserved are the client's home, or will be used to buy a home, repayment to the Legal Aid Agency may be deferred.

If legal Aid is available it will pay for the fees of the solicitor and the fees of the barrister who the solicitor engages on your behalf t
o draft pleadings and represent you at trial.   

Note that the costs associated with the Legal Aid system mean that some clients may find that they would be better off paying a barrister "privately" (i.e. without using Legal Aid) without using a solicitor. It depends on individual circumstances and how large the Legal Aid contribution would be and on whether or not, in the end, the Legal Aid Agency will require the full balance to be repaid (e.g. by means of a statutory charge on the home if you are an owner-occupier and the action has preserved your home).   
     
Civil Contempt alleged against youIf it is alleged that you have disobeyed an order of the court in civil proceedings, and an application is made to commit you to prison, you may qualify for Criminal legal aid. This is because, although the proceedings are not technically criminal, the possible result - imprisonment - is the same as in criminal proceedings and the same legal aid scheme applies. See Criminal Trials below.  
"Public Law" Family matters involving the care of children or involving vulnerable adultsDepending on your financial circumstances, Legal Aid may be available and, if so, you would need to engage a solicitor as the Legal Aid rules require a solicitor to administer the system and collect payments from the Legal Aid Agency, and contributions from the client. The solicitor will, in turn, engage a barrister to draft pleadings and represent you at trial. Note that the costs associated with the legal aid system mean that some clients may find that their Legal Aid contribution would actually be higher than the fee they would have to pay a barrister "privately". In that case, and providing the services of a solicitor are not needed for some other reason, you could, of course, choose to go direct to a barrister and not use Legal Aid. 

Criminal TrialsApart from the case of minor regulatory offences which may not be truly "criminal" in the popular sense of the word, Legal Aid is normally available for criminal trials so you would need to engage a solicitor as the Legal Aid rules require a solicitor to administer the system and collect payments from the Legal Aid Agency. Also, in criminal cases it is important to engage a solicitor to carry out investigations and collect evidence - there are particular reasons, in criminal cases, why it is not desirable for the defendant themselves try to carry out investigations. The solicitor will, in turn, engage a barrister to represent you at trial.

Note that for criminal appeals Legal Aid is available and generally no solicitor is required (because most criminal appeals involve points of law and do not require any further investigation of evidence).

For many regulatory matters which are technically matters of criminal law but which are not normally thought of as "crime" in the popular sense, such as road traffic violations, health and safety rules affecting businesses, failure to send a child to school, etc. Legal Aid is not available and such cases are generally suitable for you to go direct to a barrister.

Immigration and AsylumDepending on your financial circumstances, Legal Aid may be available and, if so, you would need to engage a solicitor as the Legal Aid rules require a solicitor to administer the system and collect payments from the Legal Aid Agency, and contributions from the client. Also, in many cases there are particular reasons why a solicitor is needed such as because the client is detained and so is not physically able to do the preparatory work necessary for their case. The solicitor will, in turn, engage a barrister to draft pleadings and represent you at trial. 


This page was lasted updated in June 2016Disclaimer