FAQ on Advice and Representation in Civil matters
For a quotation for advice about a civil law matter, send me an email explaining the background and attaching relevant documents (including Claim Form, Particulars of Claim, Defence and any other statements of case or application notices if court proceedings are current, or the equivalent documents if there are tribunal proceedings).
If it is a complex matter you don’t need to give all the details and all the documents in this initial email, just a summary.
If you are in any doubt, seek legal advice now. The law, in many cases, imposes time limits which mean that if you have a legal claim which is otherwise valid, you may lose your rights if you do not start court/tribunal proceedings, or send a notice to another party, or take some other action, by a certain deadline. Even if you do not lose your rights completely, sometimes delay can mean that a court is less willing to exercise its discretion in your favour, or delay may cause practical problems in, for example, tracing witnesses, or obtaining documents held by other parties which may, for example, be automatically destroyed after a certain period. It is true that in some other cases the best advice may be, on the contrary, to let sleeping dogs lie and not take any immediate action (apart from keeping a record of events) as in certain circumstances allowing a situation to continue over a period of time can strengthen your legal case. However you will not know whether this applies to your case unless and until you seek legal advice. If you seek advice earlier than (as it turns out) you needed to, nothing is lost, whereas if you delay, there is the possibility that opportunities might be lost.
The trial in my case is coming up soon. I haven't asked you for advice before but can I engage you to represent me at the trial?Yes, if I am available on the trial dates and the case is in an area of law I practise in. Send me an email attaching the Notice of Hearing giving the trial dates and give a short explanation of what the case is about and I will explain what further information I need for a quote to be given.
At a trial the court/tribunal will refer to documents arranged in a Trial Bundle which is produced by one of the parties. In a Trial Bundle every page has a page number and the judge and each party at the hearing have identical copies of the Trial Bundle. There will be a further copy of the Trial Bundle in the witness box. When a witness is asked to look at a particular page in the copy of the bundle in the witness box, the parties and the judge can easily and quickly refer to the same page in their bundles. As well as being paginated - having each page numbered consecutively - the Trial Bundle will have an index at the front listing each document and its page number. Most people who are involved in producing a Trial Bundle for the first time are surprised at how fraught the process can be. The difficulties arise from a combination of the fact that the parties have to co-operate in agreeing what documents should be in the Trial Bundle, the fact that the trial bundle has to be delivered in the required number of copies by a deadline but the work of producing it can only start once the contents are agreed, and the fact that the other side may indulge in gamesmanship to try to get certain documents left out (such gamesmanship is strongly disapproved of by the courts/tribunals but the nature of the Trial Bundle production process makes it difficult to prove whether a party is being more than just inefficient). For most people the only certain way of ensuring that such difficulties can be dealt with is to load the documents required to be in the Trial Bundle into a system such as Caselines as described here. The documents should be loaded to Caselines at an early stage and you should contact me as soon as possible, well before the trial date, to ask me to advise on what documents should be included. Apart from the logistics of Trial Bundle production a further reason to contact me well before the trial date is that when I study the documents, with a view to advising which should be included in the Trial Bundle, it may become apparent that your chances of success at the trial would be increased if some action were to be taken - for example seeing if further evidence on a particular point can be obtained (e.g. by, depending what the case is about, obtaining documents from the Land Registry or Companies House) and/or amending your pleadings to argue a new legal point. Generally you will need the court's/tribunal's permission as deadlines will have passed but, all other things being equal, the earlier such an application for permission to rely on new points/further evidence is made, the more likely it is that permission will be given.
A mistake often made by litigants who have not previously sought legal advice is to concentrate on particular pieces of evidence, over-estimating how significant they are, and under-estimating the importance of other things. People typically start off with a generally good assessment of what information is potentially relevant but subsequent assumptions about what the main issues are can lead them to subsequently neglect information which is logically necessary for their case, thinking that other evidence proves more than it does. For example in a case involving ownership of land the features of various plans can be focussed on but evidence about where the plans came from may be overlooked. But a plan from a conveyance, for example, is very different from a plan drawn up when seeking planning permission. To take another example: in a case concerning contractual terms, so much mental energy may be expended on the analysis of particular terms in a document that the question of where the document came from, and what evidence there is that it formed part of the parties' agreement, is overlooked. Because of this phenomenon - which might be described as a form of "confirmation bias" - it is important, if you wish me to represent you at a trial, to contact me in good time well before the process of agreeing what subset of documents should be in the Trial Bundle is due to start.
Fees are negotiable and, where possible – and it normally is possible for most pieces of work - a fixed fee for a piece of work is agreed. A fixed fee is based on how much time I think the piece of work will take me but remains fixed even if it turns out to take me longer than expected. (Equally, taking the rough with the smooth, the fee remains fixed even if, for that particular piece of work, it actually takes me less time than estimated.)
In most cases the first piece of work will be a “conference” – i.e. a meeting – to discuss the case with you and look at key documents, and see the site if it is a case concerning land. The fee for a conference would be agreed and fixed before the conference takes place.
Immediately after the conference it is usual for me to write an Opinion (i.e. a report) recording the relevant facts and analysing the legal position, with pros and cons and qualifications, and a recommended way forward. In some complex commercial and consumer cases (such as "unfair relationship" cases where many hundreds of emails and complex letters spanning several years may have to be considered) it may not be possible to quote a fixed fee for a full Opinion before the conference has taken place and more is known about the case and the nature and number of documents, but in most cases a fixed fee for a written Opinion can be agreed at the outset, before the conference takes place.
Where it is not possible, before the conference has taken place, to quote a fixed fee for a full Opinion, usually a fixed fee will be agreed (before the conference) for a preliminary written Advice to follow the conference. If the case turns out, when discussed at the conference, to be relatively simple, the preliminary Advice will, in effect, be a full Opinion, but in more complex cases the preliminary Advice is, depending on the case, likely to give definitive advice on some issues and provide a "roadmap" indicating what other issues may be worth investigating further. Having a preliminary Advice is particularly useful where there are a large number of documents and you want to know what kind of documents are most likely to be relevant before you invest too much time searching for them.
After the conference and written Advice/Opinion, the next piece of work will depend on what kind of case it is and what stage it has reached. It might be drafting a formal document – such as Particulars of Claim, Defence or Grounds of Appeal - which is necessary in court or tribunal proceedings, or an Application to the Land Registry, or simply a letter for you to send out. It may be representing you at a particular court or tribunal hearing on a particular day. Whatever the piece of work is, you would provide me with (1) the information which I need – e.g. a chronological account of what has happened, if I am to draft a Defence, and (2) PDF copies of all the documents I need to consider when doing the piece of work. When you have provided these I would then look at what you have sent briefly to estimate how many hours it is likely to take me to do the piece of work and a fixed fee can then be agreed.
Most clients prefer the certainty of fixed fees and this is normally how most pieces of work are charged for. However there are a few circumstances where a fixed fee for a piece of work is not possible. For example if there is litigation (court or tribunal proceedings) then, at some stage before the trial, it will be necessary for one or more witness statements to be drafted. Your witness statement, when signed, will be a document which you will be confirming to the court or tribunal, on oath, at the trial, to be true. You would need to be satisfied that it is true to the best of your knowledge and belief; my role, if you asked me to do the work of settling the witness statement, would be to ensure that it is clearly expressed, gives all relevant detail that you can remember, and complies with the rules for witness statements (e.g. clearly distinguishing between matters of knowledge and matters of belief). This means that if you ask me to do the work of settling a witness statement, you would write the first draft, and then drafts would pass between us as many times as is necessary. If your first draft is very clear and detailed, and you are able to clearly answer any queries I have, my contribution to the drafting process may not take me very long. On the other hand it can happen that many drafts are necessary because the answer to each query raises further queries, so it is really impossible to predict, at the outset, how many drafts there will be and how much time will be spent on each draft. An iterative process, such as settling a witness statement, is, therefore, not suitable for a fixed fee and would need to be charged on a time basis.
So each fee will be one of the following:-
1. A fixed fee, agreed in advance, for a conference or site visit of a stated duration.
2. A fixed fee, agreed in advance, for a fixed deliverable (e.g. a written Advice, Opinion, Statement of Case, Notice of Appeal, or representation on a particular day in court/tribunal) – this is the usual method of charging where the likely amount of work can be judged when agreeing a fixed fee.
3. A variable fee based on time actually taken to do the work in those few instances where the work is interative – e.g. settling a witness statement
Once a fee is agreed, and before I do any piece of work (“work” includes giving any advice) I will send you (by email) a Client Care Letter setting out my terms of business and stating the work which I will do and the fee for that piece of work. There is no obligation (on either side) unless and until you confirm your agreement to the terms in the Client Care Letter. Nothing I say before the terms in the first Client Care Letter have been agreed should be taken as legal advice – we may discuss what work you would like me to do/what work your case appears to require, and when you might get back to me, but such discussions are not legal advice and should not be taken to mean that, for example, I am advising about time limits – which I cannot do unless and until the terms in a Client Care Letter are agreed and fee paid.
I do not provide free advice. Why not?
I do not do "no win no fee" arrangements.
I do not enter into agreements with insurance companies or other third party funders. If you ask me to carry out legal work you are liable to pay my agreed fees. If you have insurance, or are a member of an organisation, such as a trade union or professional body which might pay for legal expenses, they might reimburse you for some or all of my fees but that is a matter between you and them.
If you want to get some idea of what the total fees for a case, from start to finish, might be, please read this.
The work that barristers and solicitors do is not always directly comparable - barristers do not collect evidence and most solicitors do not represent clients in court (except for the shorter more administrative hearings) though both provide legal advice - but it is true that barristers generally charge less than solicitors of equivalent seniority. Part of the reason for this may be that barristers have always done most pieces of work on the basis of a fee fixed in advance, rather than simply at an hourly rate. Whilst a fixed fee is not intrinsically cheaper - a fixed fee is, after all, based on an estimate of how much time the piece of work is likely to take - it is probably true that doing work mainly on a fixed fee basis tends to make you more aware of ways of saving time by avoiding overheads so that it does in fact not take you as long as someone who normally charges at an hourly rate who will not be so concerned at working in an efficient way.
For example, a solicitor will be quite happy for you to deliver to them your paper documents which they should, at the conclusion of the matter, store in an offsite facility for a number of years. Handling paper documents in this way increases costs - which is reflected in the fees charged - because documents have to be scanned/photocopied, which takes time, and the costs of long term offsite storage of paper are not insubstantial. By contrast a barrister will usually ask you to provide all documents as PDFs. The barrister may print these out for convenience when doing work but because all documents have been provided as PDFs - not in paper form - and because all documents the barrister has drafted will have been emailed to the client (rather than sent in paper form) the barrister will know that, at the conclusion of the case, everything they have on paper must be a copy of a document on computer so that only the computer files need to be archived, at minimal cost, and all paper can be confidentially shredded.
Although the use of computers became widespread only towards the end of the 20th Century, barristers have, in fact, always worked in a way which avoids the need for physical copying and archiving of documents. They were able to do this because throughout the 20th Century barristers only carried out work when engaged via solicitors, and the solicitors carried out - and still carry out when solicitors are involved - the necessary scanning/copying of documents to be sent to the barrister and subsequent archiving. So the way most barristers now work when engaged directly without a solicitor - asking for documents in PDF form only - is fully in line with their traditional role concentrating on the specifically legal work and choosing a way of working which avoids unnecessary overheads. Barristers have always charged less than solicitors but before the advent of computers (and changes to the Code of Conduct for barristers to allow direct access without a solicitor) you always had to engage a solicitor as well. But since 2004, as long as you are able to use a tablet or computer and provide documents in PDF form, you can engage a barrister direct.
You can get documents scanned as PDFs at any high street print shop so you do not even need your own scanner. As long as you have a tablet or computer and can carry out basic functions such as loading files to Google Drive, sending emails and printing, you can engage a barrister direct.
If you are not able to use a computer/tablet at all - and not everyone is - then you can still engage a barrister by first going to a solicitor, although you then have to pay two sets of fees.
Traditionally a client always had to engage solicitors as well as a barrister even though much of the work done by the solicitors was work which the client could have done himself - scanning in and organising documents, for example. Nowadays solicitors are only needed if there is some specific work which requires a solicitor.
This page was lasted updated in November 2016 Disclaimer