Examples of when it may be necessary to engage solicitors as well as a barrister





The dividing line between cases where you need a solicitor and cases where you can instruct a barrister direct depends on the particular type of case and, to some extent, on the individual barrister, but the following gives some illustrative examples of when a solicitor may be needed in civil cases.


Claims over £1m

One of the reasons for going direct to a barrister is often that the costs of using solicitors who specialise in the relevant area of litigation is out of proportion to the amount at stake but the higher the value of the claim the lower solicitors' fees are as a proportion of the amount in dispute. If the amount in dispute is in excess of £1m then it usually makes sense to engage solicitors as well as a barrister because it eliminates the risk of you making a mistake in the administrative work which you would have to carry out yourself if you engaged a barrister direct. The amount in dispute is the difference between losing completely and winning completely so if someone is claiming £2,000,000 from you and you claim you only owe £1,500,000, plus you are counterclaiming for £300,000, the amount in dispute is £800,000. 

If the case is about land worth £2,000,000 the amount in dispute will be £2,000,000 if you stand to lose (or gain) the whole of the land. If, for example, the dispute is about a neighbour building on their land in breach of a restrictive covenant, which is likely to reduce the value of your land by 20% then, on the face of it, the amount in dispute is £400,000. But of course when the dispute is about land the importance to you cannot necessarily be measured in purely monetary terms, particularly if it is your home on the land, so you might decide, in land cases, to use solicitors even if the notional value of the dispute is less than £1m. But don't make the mistake of using non-specialist solicitors, for whom litigation is a sideline, just because they are cheap - good solicitors add value but it is better to engage a barrister direct than to engage cheaper solicitors who are out of their depth.


Where there are more than say 500 relevant documents or more than 2000 pages

A key stage in the litigation process is the Disclosure of Documents stage at which each party will be required to show the other party the relevant (non-privileged) documents they have. If you have a large number of documents it can be difficult to decide which ones are relevant. The court/tribunal will expect you to review each document and only disclose documents which are relevant because disclosing irrelevant documents increases legal costs. If you are in doubt about whether a document is relevant you can, within reason, "play safe" and disclose it anyway, and if there are, say, 200 documents which you are sure are relevant and other 30 which you are unsure about, disclosing the 30 as well as the 200 will not increase costs that much. But the more documents there are the more the correct identification of what is relevant and what is not matters because "playing safe" and disclosing in all cases of doubt will mean a significant increase in cost. In addition the more documents there are the more difficult it becomes to spot all relevant documents because sometimes documents which are not individually probative are probative in combination and the more documents there are to consider the harder it can become to spot connections so an experienced solicitor will be needed to do this. Also, where there are a large number of documents the court/tribunal will often be reluctant to order each party to review each and every document for relevance and will usually expect the parties to come up with proposals to limit the documents which need to be reviewed by, for example, using keyword searches to collect a sub-set of emails to be individually reviewed and, if so, experienced solicitors will be needed to deal with such proposals and discussions. So if you have over 500 documents or over 2000 pages you probably need to engage solicitors to deal with the Disclosure of Documents stage and if solicitors are needed to do that then it probably makes sense to instruct the solicitors at the outset to handle the whole case.


Computer skills

A client who has never used a computer before and has no intention of starting, would need to engage solicitors as well as a barrister. The fact that you are reading this webpage means that you are using a computer or, at least, some kind of electronic device such as a tablet or phone. Some people using a computer or tablet only use it for a narrow range of activities - such as email and Google searching - but if you engage a barrister direct you will need to be able to carry out the range of ordinary office activities including:-

  • Creating and editing a text document using Microsoft Word software
  • Saving a Word document as a PDF
  • Scanning in a multiple page paper document as a multiple page PDF - e.g. you need to be able to scan a three page letter into a three page PDF (not into three PDFs) and saving it with a standardised name.
  • Scanning in an old (non-digital) photo as a PDF
  • Loading documents to cloud storage
  • Printing a Word or PDF document with a colour printer
  • Sending an email
  • Receiving an email
  • Making a PDF copy of an email

If you are not able to do the above you will need to engage solicitors.

If there are legal proceedings they can last a year or more and at some point during the process you will probably be going away - e.g. on holiday. Whenever you go away for more than two business days you will need to arrange for someone to check your post and scan in, and email to you, anything received about the case so that you can deal with it while you are away. Generally all you need when going away is a tablet or laptop and a mobile phone to “tether” it to. If you need to print anything, sign it, and scan it back in, you should be able to do that in any hotel you are staying in or at an “internet cafe”. There are very few places in the inhabited world where there is no internet access but if you are planning to, for example, trek through the Andes with only an emergency satellite phone for communication, you would need to engage solicitors (a solicitor is an attorney-at-law and can, if a client instructs them to, sign a document, other than a witness statement or disclosure statement, on the client's behalf).

Literacy in English

A client not able to read and write in English would need to engage solicitors. A client who is neither able to read/write English nor to speak/understand it, would need to find and engage a bilingual English-qualified solicitor, as using a interpreter is rarely satisfactory - law is a complex matter and things may be lost in translation.  

Available Time

If there is litigation on foot and a litigant misses deadlines set by the court/tribunal, the result can be an escalation of costs and a reduction in the litigant's chances of winning at trial. A client who is in any doubt as to whether they can give priority to the work they would need to do when going direct to a barrister, would be better going to solicitors who should ensure that all deadlines are met and who will arrange for a barrister to be instructed when needed. Going direct to a barrister will save money if a client can meet deadlines, but, if a client is liable to miss deadlines, going direct to a barrister might work out, in the end because of costs penalties, more expensive than going to solicitors. 

One key reason why engaging a barrister direct in litigation is less expensive than engaging both solicitors and a barrister, is that if you are engaging a barrister direct, you will be doing the co-ordination work that otherwise you would have paid solicitors to do. If you are not an individual but a small organisation the head of which takes a "hands on" approach then this may still make sense, but for larger organisations (which are, however, not large enough to have their own internal solicitors' department) if doing it in-house actually means paying overtime (or diverting an existing employee from profitable work) so that there is a monetary cost - then it may make sense to engage a firm of solicitors, or at least to get a quote and compare relative costs.


Those of a nervous disposition

Different people have different natural temperaments. Some people are excessively relaxed about litigation and are in danger of missing deadlines (even though their barrister points out the possible serious consequences) and in that case engaging solicitors may be the only way to ensure that deadlines are met. But those at the opposite extreme - those of a nervous disposition - may also need solicitors. 

This is because if solicitors are not engaged all correspondence will be sent direct to the client and some clients find the kind of hyperbolic correspondence sometimes received from the other party's solicitors unsettling. Even if they are advised by their barrister, when they ask their barrister to advise on/draft a response, that not all points in a letter need to be responded to, or even that no response at all is the best course, they still worry and ask for an extensive explanation of what the other side's solicitors may be getting at and why it does not require a response, etc. Ultimately this can result in significantly increased costs. 

If correspondence is received by the client during, and in the context of, a piece of work their barrister is doing for a fixed fee, the barrister may treat considering the correspondence, and perhaps drafting a brief response, as ancillary to, and included in, the work which the barrister has agreed to do for a fixed fee. If the client asks the barrister for a detailed explanation of lengthy (and perhaps hyperbolic) correspondence received the barrister might agree to still treat this as included in the fixed fee but, even if this is so, if the client frequently asks for such detailed explanations that will inevitably increase the fee quoted by the barrister for future work. This is because a fixed fee quoted by a barrister is based on the barrister's estimate of how long the work is likely to take and if the barrister knows from past experience that a particular client not infrequently asks for such detailed explanations of what the solicitors on the other side may be alluding to or getting at in correspondence and asks for a detailed explanation of the rationale for the recommended response (or lack or response), the barrister will factor that in in estimating how long the next piece of work is likely to take and what fixed fee should, therefore, be quoted. 

If such a situation develops it may call into question the rationale for engaging a barrister direct. If solicitors were to be engaged all correspondence would go direct to the solicitors (who would reply as appropriate) which would save the client's nerves and it could be, in a situation like this, that engaging solicitors as well as a barrister may (contrary to usual) be no more, or not much more, expensive than engaging a barrister direct because the client, no longer receiving the hyperbolic letters from the other side which they find so worrying, will not be seeking detailed explanations of them so that the saving in barristers fees may at least partly offset the extra cost of engaging solicitors.    


When extensive correspondence is necessary

Extensive correspondence about a legal dispute is not always a good thing as it has a tendency to gain a momentum of its own and can end up costing an excessive amount in legal fees. A court or tribunal hearing has a certain structure. The rules will require each party's case to be set out in advance in a certain amount of detail and each barrister at the hearing is obliged to anticipate, to a degree, what the other side is going to argue with only a limited opportunity to say matters in response. But correspondence is not subject to any such discipline. If you have not had occasion to see correspondence between solicitors about a legal dispute you may be thinking that there is only so much which can be said and therefore there must be a natural limit to correspondence, but to understand why this is often not the case perhaps a good analogy is a television discussion between two people with fundamentally differing outlooks. The television discussion moves from the general to the particular and moves on through the stages of one party giving their reasons for their view, the other party giving their reasons why the first party's reasons are not valid (or at least should be qualified and are not as persuasive as the other party thinks) following by the first party arguing why those objections are mistaken or only partly valid. So quite quickly there develop numerous sub-arguments or threads within the overall disputation. Then it is not long before one party starts to repeat themselves. Occasionally  this is simply because they have run out of things to say but usually it is not that but rather is a deliberate decision to repeat and re-emphasise because it is judged that, at the point the increasingly complicated multi-thread discussion has reached, the other party (or the viewer or both) may have lost sight of that point so that it requires restatement. Most television discussions do not run out of steam but are stopped by presenters when the pre-decided time slot is coming to a close. If they were not stopped they could potentially go on for hours. This is essentially what happens in solicitor's correspondence but because it is carried out at a slower pace (one letter every 14 days or every month is not unusual) the tendency to restate something said in the last letter, or the letter before that, or the one before that, lest it be forgotten is even greater.                

Barristers specialise in giving legal advice, drafting formal documents, and representing clients in court/tribunal - the three main areas required for litigation. A barrister might draft a single item of correspondence - such as a letter before action - but barristers do not deal with general correspondence because, if they did, they would end up doing nothing else and they would be giving legal advice, drafting formal documents, and representing clients in court/tribunal, so infrequently that their specialist expertise would be lost. So if extensive correspondence really is needed, a solicitor would need to be engaged.

There is a place for pre-action correspondence about a legal dispute but protracted pre-action correspondence is not always a good thing. If there is a genuine desire by both parties for a compromise solution then a one-day mediation conducted by a professional mediator is generally more likely to be successful than prolonged correspondence which can actually exacerbate differences. And where mediation is inappropriate (e.g. where an urgent injunction is needed because one party has taken precipitate action, or where the issue is clear cut and compromise is unlikely to be acceptable to at least one of the parties) the choice is between putting up with the situation or commencing legal proceedings (after an appropriate letter before action).

There are some situations, however, where a party may have reason to choose the prolonged correspondence route. For example, where two neighbours have different understandings of their respective rights, such as about the width of a right of way, it may be that most of the time there is no practical problem but occasionally circumstances conspire to cause conflict where a need to use of the full width happens to coincide with a temporary obstruction. Sometimes there is intermittent correspondence over many years as each side feels the need to assert its claimed legal rights (so that they are not lost by default) in response to some incident but neither party feels that the occasional temporary problem justifies the risk of starting court proceedings to have the underlying dispute finally resolved. If such prolonged correspondence is the chosen strategy - not always a good idea and often surprisingly expensive - but if it is the client's chosen strategy, then a barrister will normally recommend that a solicitor be engaged to conduct the correspondence.

Take another example, if land is subject to a restrictive covenant, sometimes the neighbouring landowner may object on principle to it being discharged, but often it is more a matter of the the neighbouring landowner wanting some payment as the price to agree to release a covenant, so it is more of a commercial negotiation (albeit in a legal context) than a dispute. In such a case a solicitor would be needed to conduct the negotiations through correspondence (or perhaps a land agent would be appointed to negotiate in principle with the solicitor finalising the deal once negotiated in principle).     

The commencement of litigation marks the point at which it is decided that further attempts to resolve a problem by discussion are unlikely to be successful and the time has come to invoke the powers of the court/tribunal to impose a compulsory solution according to the law. This means that in the usual case there is little correspondence between the parties once litigation has commenced. The process of litigation involves the parties sending formal documents drafted by barristers (such as pleadings) to each other at various stages, in preparation for the eventual trial, as directed by the court/tribunal, but apart from such formal documents there is little need for correspondence as such. Barristers specialise in giving legal advice, drafting formal documents, and representing clients in court/tribunal - the three main areas required for litigation - not in correspondence. Often, during the litigation process, one or two letters need to be sent, such as letters making formal settlement offers, and a barrister can draft such letters for the client to sign and send off, but if extensive correspondence is needed then solicitors will need to be engaged to conduct that correspondence. Usually extensive correspondence is not required during litigation and so solicitors are not needed but, as explained below, there may be some situations where there is a need for solicitors to deal with correspondence during litigation.


Where the litigation is a relatively small part of a wider strategy

There may be some cases where litigation is a relatively small part of a wider strategy and winning the litigation is not the main objective. For example a retailer which suffers reputational damage and loss of sales because, contrary to its contract with an overseas supplier, the supplier is using harsh employment practices, may be able to make a 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 as 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. The purpose of the litigation may be simply to bring the supplier to the negotiating table. In such cases, where the way in which the litigation is conducted is heavily influenced by wider considerations, it is important to engage solicitors who will correspond with the other party - and usually a lot of correspondence is necessary - taking account of the wider objectives.


Where there is a significant amount of correspondence aimed at negotiating a settlement

Often, during the litigation process, one or two letters need to be sent, such as letters making formal settlement offers, and a barrister can draft such letters for the client to sign and send off, but if extensive correspondence is needed then solicitors will need to be engaged to conduct that correspondence. When litigation is underway it is not normal for the parties to engage in extensive correspondence arguing about who has the stronger case and who is going to win. Each side has its own view of the strength of its case and which side is right will be decided by the court/tribunal at the trial, and usually the view is taken by lawyers that there is no point in incurring further costs writing letters arguing about it. If both sides demonstrate a real desire to settle then usually the best course is to have a formal one-day mediation conducted by a professional mediator, but, in the absence of that, writing letters arguing how strong a case you have is unlikely to be a good use of money. However sometimes clients have particular reasons for preferring extensive settlement correspondence over possible settlement rather than arranging a mediation (one such reason would be where the particular litigation is part of a wider strategy as mentioned in the paragraph above) and in that case solicitors will generally be needed to deal with that correspondence.     


Dealing with service of documents 

During the litigation process each side has to deliver certain formal documents to the other side. This is known as service of documents. Serve might seem an odd word to use but it has the same root as the word used in the game of tennis. The court/tribunal rules set out what you have to do for service of a document to be valid and are quite precise. For example if you serve a document by post, you normally have to send it by First Class post in order for service to be valid. Barristers are not allowed to carry out service of documents so this is something the client has to do. Most clients are able to follow the rules and carry out service of documents with little difficulty but some people find this difficult. Those clients who find it difficult tend to fall into one of two groups. Some clients just have difficulty following detailed rules - something in them rebels against apparently arbitrary rules - and so they use a second class stamp, or miss off the postcode from an address, or post documents a day late. Other clients bombard the barrister with detailed questions about the rules - "I haven't got first class stamp: will a second class stamp do?" "why is a first class stamp necessary?" "if I did it slightly different form your instructions, would that still be valid? Do I have to say "Please find enclosed... by way of service" in a covering letter or can I say "Hi there: here is a document"? As explained above (under Disclosure of Documents) barristers need to limit the amount of time they spend answering queries which fall outside the core areas which barristers specialise in. This means that a client instructing a barrister directly needs to be able to understand the advice given at the start of proceedings about how to validly serve documents throughout the proceedings, store that advice (e.g. in a folder in their email system called Service) and then follow it whenever documents need to be served throughout the lifetime of the case without having to double-check everything with the barrister every time. Of course sometimes something truly unexpected happens and a client might need to ask about alternative methods of service - for example if they are cut off by snowfall, and so cannot use the post, but still have internet access. But, such situations apart, the client needs to be able to carry out service of documents without having to correspond with the barrister about how to do it each time. If the client is not able to do this then the barrister will probably insist that they engage a solicitor who will carry out all necessary service of documents throughout the case.                    


Those based outside the UK

A person who is a party to court proceedings in England generally has to give an address within the United Kingdom at which formal documents relating to the proceedings can be sent by the other parties and by the court. This is known as their address for service of documents or service address. But if a party engages a solicitor in the UK it will be the solicitor's address (rather than their own address) which is their service address because the solicitor will be dealing with all litigation correspondence for them. If you are based outside the UK and you do not have a solicitor, you would, if involved in court proceedings, need to make arrangements with someone in the UK to act as your address for service and scan in and email to you any documents received. 

Also you may have to serve documents in paper form on other parties if they do not provide an email address for service (they do not have to provide an email address for service and can choose to provide just a postal address) and generally you cannot formally serve documents on other parties by sending them by post from overseas because, in most courts, service by post is only valid if sent by a service which provides for delivery on the next business day and postal services from overseas do not generally offer a next business day delivery service to the UK. So unless you can make arrangements with someone in the UK who can (often at short notice) print out and send documents in the post for you, it may be necessary to engage a solicitor in the UK. Although barristers draft formal documents, a barrister is not allowed to file or serve them for you. 

If you are a party to tribunal proceedings in England then usually you can give an address for service outside the UK but this does depend on the tribunal concerned.
      

Multiple claimants

A client considering bringing a claim together with other people will find that there are advantages in everyone engaging a solicitor who, in turn, will engage a barrister to carry out the barrister work. This is because a group of people 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 on time, their claim could be barred by someone else's mistake or lack of diligence, so they may prefer to jointly engage a solicitor who will ensure that everything is done on time. A solicitor can also handle money and receive (and chase) everyone's contribution to fees. In addition a solicitor, who will be handling all correspondence, will be alive to the possibility of conflicts of interest arising. 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 by the same lawyers (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. 

Sometimes there are a group of people, or a number of organisations, who have a common interest but only some of them have the legal rights necessary to bring a court claim. In this case everyone might still wish to be involved and contribute even though only some of their number will actually be the legal claimants. Again in such complex cases a solicitor will need to be engaged.

When two or more people decide to go into business together they will often decide to incorporate a limited company or limited liability partnership (LLP) to carry on the business and hold the assets of the business. Within a limited company or LLP the sometimes differing views and interests of its members are accomodated and managed "internally" within the framework of the company's/LLP's constitution, and the company/LLP itself is a "legal person" able to bring a claim in its own name as a corporate body, and there is no difficulty in principle in a limited company/LLP engaging a barrister direct without a solicitor despite the fact that it may have many members. Sometimes it is more complicated. For example the premises from which a limited company operates might be owned not by the company itself but by one of its members and in this situation, depending on the nature of the dispute, a solicitor might need to be engaged but in the simple case of a limited company/LLP which itself owns all the assets used by its business there is no reason in principle why a barrister should not be engaged direct.  

Where two or more people jointly own land they may, as between themselves, have different beneficial interests (they may be beneficial joint tenants, or beneficial tenants in common in certain shares) but their legal (as distinct from beneficial) interest with be joint, and as between themselves and neighbouring landowners (for example) they have, and are likely to continue to have, a common interest so, again, in this situation there is no difficulty in principle in them jointly engaging a barrister direct.        


Multiple Claims against different defendants

You do not normally need a solicitor just because there is more than one defendant in the same court claim, but sometimes there are two separate but linked court claims or potential claims against different defendants which need to be co-ordinated by a solicitor. For example A has a claim against B and engages solicitors C to pursue the claim against B. Because of the negligence of C, A's claim against B has become more difficult - not impossible but more difficult. A therefore needs to find lawyers to (1) take over their claim against B and (2) pursue C for the loss caused by their negligence (i.e. the difference between what A eventually recovers from B and what A would have recovered from B if C had not handled the original claim negligently). In this case it is necessary to engage solicitors specialising in professional negligence claims to manage and co-ordinate the two claims because they have an ongoing and varying influence on each other. For example a decision might be taken not to proceed too far in a claim against C until the claim against B is concluded and the loss is known, but it is important not to delay a formal claim against C too long and miss the limitation date. Avoiding missing the limitation date for a claim against C is not always as simple as it might appear because of technical rules about when the cause of action is deemed to have arisen, which affects when the limitation date is, and the interaction between these technical rules and the facts as they emerge when pursuing B.    


Where a solicitor is needed to take a detailed statement from the client

Before the advent of direct access to barristers, a solicitor engaging a barrister would, at the outset, and before the barrister met the client, provide the barrister with factual information obtained from the client. Depending on the complexity and urgency of the matter (and to a certain extent depending on the practices and preferences of the individual solicitor) this initial factual information provided to the barrister could range from almost a full formal witness statement obtained by the solicitor after a lengthy interview of the client, to a more informal written summary of the facts. Sometimes – and increasingly once email started to be widely used – the client would, often without being asked, have provided the solicitor at the outset with quite a lot of factual details in written form and a copy of the client’s letter or email providing those details would simply have been sent by the solicitor to the barrister as the main source of information.

Now that direct access to barristers is possible, most people when sending an enquiry to a barrister will do so by email providing key factual details, but in virtually every case there will be at least some factual questions the barrister needs to ask before advising, and certainly before a barrister can draft any formal witness statement which may be needed for court or tribunal proceedings.

Traditionally barristers did very little drafting of witness statements: barristers would never take a statement “from scratch” by interviewing a client and if they were asked by a solicitor to “settle” (i.e. finalise) a witness statement their involvement would generally be limited to asking for finer details, or clarification, on a limited number of particular points.

It is very difficult for someone who is not a trained lawyer to write an account first time which is 100% clear and gives all necessary finer detail. Someone may use different words in their statement to refer to the same things (e.g. “the property”, “my property”, “the house”) so that the reader is not entirely sure whether they are all referring to the same thing. In an effort to keep the account to a reasonable length they may summarise certain aspects which, unknown to them, might be particularly significant and need to be set out in greater detail. So a barrister engaged direct will need to obtain these details from the client and, if a formal witness statement is needed for court or tribunal proceedings, will need to incorporate that information in a draft witness statement for the client to check. There can be some to-ing and fro-ing as the answer to one question prompts a further question.

Traditionally solicitors spent a large part of their time drafting witness statements – particularly if the time taken obtaining information from the client at various stages (which will eventually be incorporated when the formal witness statement is prepared) is counted. By contrast barristers spend most of their time representing the client in court/tribunal, drafting legal documents (such as pleadings), and giving legal advice. If barristers were to spend as much time drafting witness statements for clients as solicitors traditionally did then they might not develop, at least not to the same extent, the specialist skills of oral advocacy, legal drafting, and giving legal opinions, which are the key services which barristers provide. Consequently barristers will generally not take on cases on a direct access basis where a large proportion of time would need to be spent on witness statements. Instead they will suggest that the client engages solicitors as well.

As a general rule (though not true in every case) the following type of cases are likely to need a large amount of time devoted to taking a factual account from a client and so would normally require solicitors to be engaged:

Employment disputes

In employment disputes it is not feasible for the client to write down every single thing which has happened - day in and day out - over the years that they have been employed. If it is not feasible to write down everything, this might not be a problem if the client could reliably recognise what is relevant and what is not, but there are some types of case, particularly discrimination/victimisation in employment claims, where this can be particularly difficult. Because some unscrupulous employers will attempt to disguise their real intentions and motivations it usually requires a solicitor with experience of employment cases, and of the way organisations behave, to interview the client in depth, over many hours in total, with all available letters and emails to hand, to identify, out of the mass of information, any tell-tale signs that all was not as it appeared - it can be very much a case of I don't know what I am looking for until I find it. In such cases a solicitor is needed who is able to recognise possible legal ‘angles’ during questioning of a witness and formulate questions ‘on the fly’.

High value cases

The stages of litigation are structured in such a way that the party bring the case is required to set out, at an early state, their “pleadings” – that is to say a concise statement of the relevant facts they allege, and the other party is required to set out which alleged concise facts they agree with and which they dispute. The idea is to save time and money because it is only those matters which are in dispute which the court/tribunal has to decide at the eventual trial. This reduces the length of the trial and also means that the witness statements for the trial only have to set out the parties’ detailed recollections on those particular matters in dispute and so take less time to prepare.

The pleadings perform a crucial role and it is important to get them right. A key aspect of getting the pleadings right is to select the right level of detail. Insufficient detail and there is a risk that when the detail (on matter in dispute) is provided in witness statements for the trial, the judge may say that something should have been specifically pleaded if it was to be relied on. However if too much detail is provided in pleadings, that increases the risk that something turns out to be incorrect – human memory is fallible and if a barrister drafts pleadings with very specific details of six occasions on which a right of way was blocked in a two month period, there is a risk that when the witness statement for the client is being finalised, later on, they may realise that some of the very specific details (exact time and date, for example) already stated in the pleadings are not quite correct, whereas if the pleadings were more concise (but still fairly gave the other party due notice of the case they have to meet) the risk of something turning out to be incorrect would be reduced.

It might seem that the obvious answer to this potential problem is for a full witness statement covering everything to be obtained before the pleadings stage. The problem with doing that, however, is that, as explained above, getting full detail from the client about everything is not just a matter of asking the client to write everything down. Inevitably clarifications have to be sought and further detail requested, to be certain that it really is everything, and is 100% clear, and all this takes time and increases the lawyers’ fees. In most cases it would be disproportionately expensive to “drill down” to such an extent given that in the average case only a limited number of issues turn out to be in dispute. However in a high value case with a lot at stake this may be worth doing as the solicitors fees incurred will be less as a proportion of the amount at stake in the case. 

What counts as a "high value" case depends on the circumstances but if the amount in dispute is in excess of £1m then it usually makes sense to engage solicitors as well as a barrister anyway because it eliminates the risk of you making a mistake in the administrative work which you would have to carry out yourself if you engaged a barrister direct. The amount in dispute is the difference between losing completely and winning completely so if someone is claiming £2,000,000 from you and you claim you only owe £1,500,000, plus you are counterclaiming for £300,000, the amount in dispute is £800,000. 

If the case is about land worth £2,000,000 the amount in dispute will be £2,000,000 if you stand to lose (or gain) the whole of the land. If, for example, the dispute is about a neighbour building on their land in breach of a restrictive covenant, which is likely to reduce the value of your land by 20% then, on the face of it, the amount in dispute is £400,000. But of course when the dispute is about land the importance to you cannot necessarily be measured in purely monetary terms, particularly if it is your home on the land, so you might decide, in land cases, to use solicitors even if the notional value of the dispute is less than £1m. But don't make the mistake of using non-specialist solicitors, for whom litigation is a sideline, just because they are cheap - good solicitors add value but it is better to engage a barrister direct than to engage cheaper solicitors who are out of their depth. 


When a solicitor is needed to interview witnesses 

In the majority of cases, given a barrister’s advice about the issues in a case and about what types of documents may be worth looking for, most clients in most cases are able to themselves search for relevant documents. And a barrister can also draft an instruction letter to be sent by the client to an investigator asking for statements to be taken from witnesses and outlining the particular matters they should be questioned about. The investigator needs to be a professional investigator, or legal executive, skilled in taking statements but does not generally need to be a solicitor.

However there are some types of case which do need a solicitor to take witness statements and look through documents. These tend to be cases where something has gone wrong but the exact nature of the legal claim which might be made, and even who it might be made against, will only emerge as investigations are carried out and witnesses are interviewed. Typically these will be cases where the circumstances are such that legal duties which arise will be duties to take care, or to act in good faith (rather than a strict duty to deliver a particular result) and where a number of people are involved some of whom may be trying to cover their tracks by characterising as 'above board' actions for which there was in fact an ulterior motive and/or deflect responsibility onto others. In such cases the person taking the witness statement needs to be a solicitor who is able to recognise possible legal ‘angles’ during questioning of a witness and formulate questions ‘on the fly’.

                     

If a hearing is imminent and you have not sought legal advice before

The ideal is to consult a barrister as soon as a problem arises which could become a legal problem because, generally speaking, the earlier advice is sought the more options are available. However legal advice does have a cost so inevitably some people will wait and see if they can resolve matters without recourse to legal advice. Once someone is on a receiving end of formal legal proceedings they will usually seek legal advice but sometimes people try to handle matters without advice and some people will event commence legal proceedings without first taking advice. 

In deciding to do without legal advice some people are influenced by the growing number of publications aimed at those involved in court and tribunal proceedings who have not engaged lawyers. Guides designed for those who have no lawyer understandably tend to concentrate on practical matters such as how to put together a trial bundle, how each page has to be numbered and what index is needed, etc. They often cannot say very much about what the law is because the law is complex and cannot be explained in a guide. A guide will not actually say that the law does not matter and that as long as you put together a neat bundle of documents the judge, kindly disposed as all judges are to litigants without a lawyer, possessed of infinite patience, and having available to them unlimited time, will ensure the right outcome. The guide will not actually say that - but it is understandable that many people reading a guide will come away with that (mistaken) impression because we tend to subconsciously assume that what a guide devotes most time to is what is most important and forget that some things about which little is said (because they are too complicated) such as the law and the pleadings are also very important. Law is a subject which can seem easier than it is. Medicine and science seem complicated because they use a specialist technical vocabulary and appearances are not deceptive - they are indeed complicated. Law is complicated but can seem simple because lawyers use everyday words such as trust, confidence, userexecute with a particular technical meaning. This can be a trap (not the only trap) for the unwary.

For whatever reason, it can be some months into the litigation before many people first seek advice from a barrister. This is not ideal but is better than leaving matters until just before the trial. If advice is sought when the trial is many months away it is often - not always but often - possible for the case to be put on the right track. It might be costly because the barrister might advise than an application needs to be made to, for example, amend the pleadings and if the court/tribunal allows this it will normally be on condition that the extra legal costs which the other side incur in consequence are paid.

If, however, matters are left until just before the trial it will not usually be possible for a barrister to help on a direct access basis. This is because in such a situation it will be imperative that the barrister is provided with all relevant documents in electronic form quickly but the client will rarely be able to do this. The reason for this is partly that scanning in and indexing documents takes time but also, and perhaps more significantly, pursuing, for many months, legal proceedings without legal advice very often causes the client to concentrate so much on their own understanding of the process, and their own understanding of the legal issues, that they find it difficult to step back and provide promptly information and documents which the barrister asks for which do not meet their own ideas, unfortunately often mistaken, of importance and relevance. It is also the case that legal documents may have been discarded, or wrongly separated. For example a pleading may identify documents by simply saying "the letters annexed" but the client may have separated attached documents as part of the organisation of the case so that it cannot then easily be determined precisely what documents the pleading was referring to. Another common difficulty is that a client cannot immediately say when they received a document - whether it was a document they had before proceedings were commenced or whether it has been provided to them as part of the proceedings. Sometimes it matters little but sometimes it is very important.

For reasons such as these, if it is close to a trial date and the client has not previously had legal advice, it will nearly always be necessary for them to engage solicitors so that the documentation can be sorted out and provided to a barrister in the correct format even if the case is such that it would have been suitable for direct access if a barrister been engaged earlier on.

    


Third party funding   

Most civil claims are "privately" funded in that the client themselves pays the fees (and claims back the fees on winning where this is possible). However if the client cannot afford to pay, there are schemes under which a third party may be prepared to fund certain types of the litigation. The third party may be the Legal Aid Agency or a Trade Union or professional association, a charity, or an insurance company. Some litigation funding comes with no strings attached but in other cases you may have to pay a contribution. In some cases the funding is more like a loan in that if you are successful in the litigation the funder has first call on the property you recover or preserve to repay their outlay (though the funder may take some of the risk of the case not succeeding). Where litigation is funded by a third party funder, the third party funder will normally either insist, or at least strongly prefer, solicitors to be engaged as well as a barrister, just as two people (who do not normally work together) bringing a claim together will normally prefer have a solicitor to conduct the litigation and handle all correspondence (see See Multiple Claimants or Multiple Claims above). The solicitor's duty is to act in the best interests of the client but, as a condition of funding the claim, the client may have to agree to the third-party funder's terms which may have certain stipulations as to how much can be spent without specific approval. Also the third party funder has an interest in procedural decisions which can affect costs, and the third party funder relies on the solicitor to keep it up to date with costs incurred and with any developments which may affect future costs or affect the likelihood of ultimate success. The greater the litigation risk taken by the third-party funder the greater the risk of a dispute between the litigation funder and the client - for example about whether to accept any offer made, or whether further investigations should be paid for - but for those who cannot afford to fund litigation themselves, third party funding - where it is available - may be the only option.


Housing disputes if you are the tenant

If you have a legal problem with a landlord you will often qualify for Legal Aid and if you use Legal Aid you will need a solicitor (see above).


Asylum claims

If you are seeking asylum or seeking accommodation you will often qualify for Legal Aid and if you use Legal Aid you will need a solicitor (see above). 
 

Personal injury claims

Personal injury claimants have a privileged position in the Civil Procedure Rules which means that in normal circumstances they do not have to pay the defendant's costs if they lose. This has created a "market" for solicitors to offer Conditional Fee Agreements (i.e. "no win no fee" agreements). The solicitors will, in turn, engage a barrister to do the barrister work which the case requires. CFAs are not normally available if the client engages a barrister direct. The reason for this is that when a barrister is engaged direct, the barrister carries out a series of individual pieces of work as the case proceeds and much administrative work is done by the client themselves with the client only asking the barrister for advice about this administrative work as and when necessary. Much depends on how efficient the client is - e.g. in ensuring deadlines are met - so it is difficult for a barrister to agree to accept the risk of not being paid when it is not only the strength of the case itself (which the barrister can assess) but also the efficiency of the client, which will affect the outcome. So if there is to be a conditional fee agreement this means that in practice solicitors will need to be engaged to manage the litigation and ensure all deadlines are met. 



Civil search orders

As part of a civil case parties will normally be ordered to provide copies of relevant documents they have to the other side. If there is reason to believe that a party has documents which, far from disclosing, they will actually dispose of at the first hint of legal proceedings, the court may make a civil search order authorising a party's solicitors to attend the other party's premises and take documents or copies of documents. Such an order is only granted in extreme circumstances and, if granted, is subject to strict safeguards. For example the order will require the other party to hand over documents: if the other party does not do so that is a contempt of court but documents cannot be taken without permission. Documents cannot be taken by a party themselves but only by their solicitors, and an independent firm of supervising solicitors must oversee the process and explain the order to the party whose premises are searched. 


Conveyancing  

Conveyancing is the process of buying or selling land (with or without a building on it) and involves carrying out searches to make sure that the buyer will get good legal title to the property, and handling money often in circumstances where there is a chain of transactions occurring simultaneously. A client who wishes to buy or sell property would always go to a solicitor rather than to a barrister. In a small percentage of cases there might be some matter on which a barrister's opinion might be sought but, if so, then it would be the solicitor who engaged the barrister rather than the client doing so directly. This is because there may be information the solicitor has which the barrister needs to be provided with before giving an opinion, and also because the barrister's advice may need to be acted on in the conveyancing process which the solicitor is carrying out.   


Other Transactions

A client who wishes to execute a transaction for which legal formalities are either required or are good practice would normally go to a solicitor. Examples of transactions include making a Will, creating a Trust, creating a company, or entering into a commercial contract. In many cases the client knows in detail what they want to do but just needs the legal formalities to be dealt with and in this case the solicitor would not generally need to consult a barrister (this is often the case when making a Will or creating a company) but in other cases the client is also seeking advice about the best way of arranging matters to achieve their objectives. This is often the case with commercial contracts and Trusts, and might apply to some Wills and some company structures, and in this case the solicitor, having established the background circumstances and the client's overall objectives, will often engage a specialist barrister to draft the document.

Creditors

A creditor owed money in circumstances where there is unlikely to be any dispute about the fact that it is owed is unlikely to need a barrister. An example would be if goods or services have been provided for a clearly agreed price and no complaint about the goods or services has been made. If it is a relatively small amount of money and the debtor needs time to pay the creditor may well feel that they can probably come to an arrangement with the debtor without needing to go to a solicitor but if it is a larger amount they may wish to engage a solicitor. Where appropriate the creditor's solicitor can negotiate a payment plan with the debtor and ensure that any agreement is properly documented and that, if possible and appropriate, security is obtained. If a debtor owns a house or other land it is possible for the solicitor to apply to the Court for a charging order but often a debtor will voluntarily agree to a charge (like a mortgage) being placed on their land as part of an agreement to repay the debt by affordable installments.

Debtors 

If a debtor thinks they owe money, the first question is whether the money is really owing in law. If the debt is for goods and services or they have received a loan, it might be that some of the laws designed to protect consumers may be relevant. There are, for example, regulations about sales in peoples' houses, or over the internet or by phone, and many loan agreements are regulated. There may also be a question of whether the goods or services provided were as agreed and whether they were they provided on time. A barrister would be consulted about matters such as these. Again if something is owed for goods or services but the precise amount was never agreed and the amount charged seems excessive, a barrister may be asked to advise. But if it is simply the case that the debt is definitely owed but the debtor can't afford to pay - at least not all at once - then depending how much it is many debtors go to the Citizens Advice Bureau who can offer advice about organising finances, negotiating with creditors, and prioritising repayments. If negotiations with creditors fail and a debtor is on the receiving end of threats of legal enforcement action then they would normally to consult a solicitor.

Judgment Debtors

A judgment debtor who has been ordered by a court or tribunal to pay a sum of money to their opponent might be able to appeal. A barrister can advise on whether there are grounds for an appeal. If there are no grounds to appeal or if routes of appeal have already been exhausted, and the debtor can't afford to pay the amount of the judgment, they will often try to negotiate with the other party (or with their solicitor if the other party has engaged solicitors) for time to pay. The Citizens Advice Bureau can also offer advice about organising finances, negotiating with creditors, and prioritising repayments. If negotiations fail and the debtor is on the receiving end of threats of legal enforcement action then they will normally consult a solicitor. If the court/tribunal judgment includes costs to be assessed (e.g. the order might say "the Defendant shall pay the Claimant £40,000 plus the Claimant's costs of the case to be subject to detailed assessment if not agreed") then the debtor will want to consult a solicitor immediately even if they can afford to pay because the solicitor will be able to advise what offers should be made for costs and, if the costs offer is not accepted, a solicitor will be needed to handle the assessment process whereby the court/tribunal eventually decides how much should be paid by way of costs.

Judgment Creditors

Most people will pay up when a court/tribunal judgment is obtained against them. If this does not happen and it is a relatively small amount of money and the debtor needs time to pay, the judgment creditor may feel that they can probably come to an arrangement with the debtor without needing to go to a solicitor, but if it is a larger amount usually a solicitor is engaged. Where appropriate the solicitor can negotiate a payment plan with the debtor and ensure that any agreement is properly documented and that, if possible and appropriate, security is obtained. If a debtor owns a house or other land it is possible for the solicitor to apply to the Court for a charging order but often a debtor will voluntarily agree to a charge (like a mortgage) being placed on their land as part of an agreement to repay the debt by affordable installments. A judgment creditor who has a court/tribunal judgment which includes costs to be assessed (e.g. which says "the Defendant shall pay the Claimant £40,000 plus the Claimant's costs of the case to be subject to detailed assessment if not agreed") will want to consult a solicitor immediately because even if the judgment debtor immediately pays any fixed amount stated in the order (e.g. the £40,000 in the above example) a solicitor is still needed to handle the process of assessment of costs - i.e. to negotiate costs or, failing agreement, to start the process whereby the court/tribunal eventually decides how much should be paid by way of costs.

Costs Recovery

At the conclusion of a trial, appeal, or other hearing, the judge will normally order the losing party to pay the costs of the winner. This does not always happen but this is the general rule in most courts and many tribunals.

The claimed costs of the party, in whose favour the costs order has been made, are set out either in summary form in a Schedule/Statement of Costs or in much more detailed form in a traditional Bill of Costs. If the summary form is used then normally the same judge who heard the trial/appeal and ordered the loser to pay the winner's costs will decide (assess) how much of the costs claimed in the Schedule/Statement of Costs should be allowed. If the detailed form is used then the judge who heard the trial/appeal and ordered the loser to pay the winner's costs will refer the assessment of costs to a specialist cost judge and costs will be assessed by the costs judge as part of a process called Detailed Assessment which is almost like another court case. A party can ask the judge to carry out a summary assessment, or ask the judge to order detailed assessment, but ultimately it is the judge's decision. 

If you have not engaged solicitors, most of the costs you will be seeking to recover, if you are awarded costs, will be disbursements, but in some courts and some tribunals you can also seek to claim some small items of costs (such as postage) which do not count as disbursements and also, possibly, a modest allowance for your own time spent working on the case. If Detailed Assessment is ordered then you will need to appoint solicitors to deal with the Detailed Assessment process for you. The solicitors should have no difficulty claiming for the disbursements you have incurred (whether each disbursement are allowed in full depends on a number of factors but the solicitors should have little difficulty in drafting the disbursements part of the Bill of Costs) but they may have some difficulties with small items and also in any claim for your own time. This is because if you had appointed solicitors at the outset they would have recorded time using a particular method employing special codes and they may not be able to create, from whatever records you have kept, the kind of breakdown which is ideally required in a Bill of Costs for Detailed Assessment.

If you are awarded costs and there is a summary assessment of costs the Schedule/Statement of Costs would (if you have not engaged solicitors) be drafted by the barrister who you engage to represent you at the hearing, and would only include disbursements. This is because in order to maintain their specialist skills in drafting, advocacy, and giving legal advice, barristers do not undertake time-consuming 'solicitor work' such as dealing with detailed costs matters, detailed correspondence, and disclosure of documents. And it would not be possible, if you engage a barrister to represent you at a hearing, for you to draft a Schedule/Statement of Costs yourself because, if a barrister is representing you, they would need to be able to explain the Schedule/Statement of Costs to the judge and have confidence that it is drawn up in the correct way.

So, in summary, if you do not engage a solicitor, the costs you recover, if you are awarded costs, will be wholly or largely limited to disbursements and there may be some modest extra costs which are not recovered. If you want to try of achieve 100% costs recovery then you need to engage solicitors from the outset. If solicitors are engaged from the outset they will ensure the correct records are kept to try to achieve 100% costs recovery. Before you decide to do this, however, bear in mind that in practice 100% costs recovery is rare. This is because unless indemnity costs are ordered (which is unusual) the judge assessing costs will resolve any doubt, about whether the amount or type of expenditure is allowable, in favour of the paying party, so even when the Schedule/Statement of Costs, or Bill of Costs, claims, in the correct form, every possible item which might be allowable, it is common for only say 90% of costs to be recovered. If you engage solicitors as well as a barrister it will probably double your costs which means that the 10% (if that is what it is) of unrecovered costs will also be double which will in all probability wipe out any extra potential costs recovery. So chasing 100% costs recovery can turn out to be a mirage. Most clients prefer to save costs by not instructing solicitors (where there is no other reason to engage solicitors) and accepting the quid pro quo of only claiming disbursements if they are awarded costs.

    
This page was lasted updated in July 2019          Disclaimer