FAQ for experts engaged by a client who has also engaged a Direct Access Barrister

I have been contacted by a prospective client with a view to providing a report/drafting a plan, and the client tells me that they have instructed a barrister but have not instructed a solicitor - how is this possible?

For over 100 years, from the late 19th Century to the early 21st Century it was not possible for someone to engage a barrister without also engaging a solicitor intermediary and, even before that, it was usual (though not compulsory) for a solicitor to be engaged as well as a barrister. As a result of practices and procedures developed over this period, it is clear what type of work is "barrister work" - i.e. representing clients in court/tribunal, drafting formal legal documents such as pleadings, and providing specialist legal advice - and what type of work is "solicitor work" -  i.e. conducting correspondence, serving and filing formal documents, conducting correspondence on behalf of the client, and instructing, on behalf of the client, other professionals such as barristers, and experts of various kinds (surgeons, surveyors, etc.) where the type of case requires expert evidence (to be considered by the court/tribunal) or at least expert assistance (e.g. to help ascertain whether there are grounds for bringing a claim in the first place or to draft an accurate plan to accompany the initial Claim Form).  

Since 2004 it has been possible for a client to instruct a barrister direct but it is important to note that when a barrister is instructed directly, the barrister still only carries out "barrister work": the "solicitor work" is carried out by the client themselves - not by the barrister.

The client has asked me to carry out work but I have a query about what I have been asked to do. I am aware that the client has instructed a barrister - should I raise the query with the client or with the barrister?

With the client. This is for two reasons. First, it is the client who is instructing you - i.e. formally asking you to do the work and agreeing and paying your fees - and the answer to any query may have a knock-on effect on exactly what you are being asked to do and on fees, so the client has to answer your query. Depending what the query is the client may or may not seek advice from a barrister but it will always be the client who comes back to you in response to a query, so you should address all queries to the client - not to any barrister you may be aware of. Secondly, unlike solicitors who have a general retainer to carry out all work required on a case (including deciding what work they will do themselves and what work they will instruct others, such as barristers, enquiry agents, etc. to do), barristers carry out one piece of work at a time, agreeing a fee (usually a fixed fee) for each piece of work individually, so it is important that all correspondence comes to the client themselves so that the client can decide whether it is something they can deal with themselves (e.g. a basic query such as: which wall am I asked to produce a report on?) or whether it is something they need to seek advice from the barrister about before responding to you.    

I often receive instructions from solicitors and I find it much easier to query things with a lawyer than with a non-lawyer client.  

The system of direct access to barristers is designed to save costs and more and more people are using it and it usually works reasonably well. Usually when an expert queries anything with the client which requires lawyer-input the client will consult any barrister they are instructing before responding so the response to your query may actually be clearer and better than if you had been instructed by solicitors. The best way to raise any query with the client is generally by email because it means that if it is a matter that barrister input is required on the client can easily forward your email to the barrister (whereas if you raise your query with the client by telephone, that makes it is more difficult for the client).

When I send a report or correspondence to the client, should I copy in any barrister they may have instructed?

No. At first sight this might seem to be a useful and helpful thing to do but it can cause confusion because the client, seeing that the barrister had received a copy of something, might wrongly assume that the barrister was in some way dealing with it. Barristers, unlike solicitors, do not accept general retainers – i.e. do not have a general retainer to deal with everything and anything which might arise; on the contrary they are engaged to carry out one specific piece of work at a time. Every time you send a communication to an the client, they will have to decide whether it is something they can deal with themselves without advice from a barrister, or whether they wish to seek advice from a barrister. So the litigant needs to themselves receive the correspondence (without a copy being sent to any barrister) so that they can decide what to do. In addition because barristers are instructed to carry out individual pieces of work, it cannot be assumed that any barrister who you may be aware has carried out any work for the client in the past will actually be instructed in the future - although normally a client will stick with the same barrister for continuity, this cannot be assumed. It might be, for example, that a barrister had to withdraw because a conflict of interest had come to light and, if so, you might be guilty of professional misconduct/breach of confidence if you copied that barrister in on a communication with your client.

In the past, when I have been instructed by solicitors to give expert evidence for court/tribunal proceedings, a conference with counsel has been arranged, attended by me, the client, solicitor and barrister. How does this work with direct access?

It is exactly the same except that no solicitor is present and arrangements for the conference (and agreement about your fee for the conference) are made by the client, not by a solicitor. It is usual for there to be a conference shortly before the trial so that the barrister can plan their cross-examination of the expert on the other side with the benefit of your expert input. Conferences may also be appropriate earlier on and if you believe a conference with counsel earlier on would be beneficial you can suggest to the client that they arrange this.    

This page was lasted updated in June 2017. Disclaimer