I have been corresponding with the opposing party, a litigant in person. At a recent Case Management Conference the opposing party was represented by a barrister under Direct Access. Should I send future correspondence to the barrister?
No. Although there is no longer any rule which prevents barristers from conducting correspondence on behalf of a client, it would be rare for a barrister to be offered, or accept, instructions to conduct correspondence. The main reasons for this are (1) a barrister is a self-employed individual practitioner who is not available on every day and therefore could not reliably undertake to deal with correspondence whenever it may arrive: barristers accept instructions to carry out individual pieces of work, such as representation in court, drafting a document, or giving legal advice, and do not accept general retainers (2) most clients who engage a Direct Access barrister (rather than engaging a solicitor and a barrister) do so to save costs and therefore wish to receive all correspondence themselves so that they can decide which letter/emails they need advice on before responding, and which email/letters they can respond to without first taking advice. You should, therefore, continue to send correspondence to the litigant in person on the other side and not to the barrister which they engaged for the CMC.
I find it much easier to correspond with a lawyer because a lawyer will know what matters can be agreed to to save costs for both parties, without compromising their client's case, whereas a litigant in person is, understandably, usually very wary of agreeing to anything
That is understandable but if the opposing party has not engaged a solicitor, you will have to correspond with them directly (you cannot send correspondence to a barrister they may have instructed to draft pleadings or instructed to appear at a past hearing). There are, however, some practical steps you can take. A litigant in person who has engaged a Direct Access barrister in the past may well ask that, or another, barrister to advise them on correspondence received, perhaps even asking the barrister to actually draft a response for them to send. If you send correspondence and documents to the opposing party in PDF form by email (in addition to sending by any other means necessary to effect valid service where that is required) that will enable the opposing party to easily forward the email to any barrister they may ask to advise them. Of course they may decide to respond without taking advice, but providing everything in PDF form by email makes it more likely (all other things being equal) that they will seek advice before responding because it makes it easier for them to do so.
Bear in mind also that a litigant may only check their emails once a day or once every two days, and if they decide to seek advice before replying, that will mean a further delay, so if you may need to ask a litigant in person to agree to an extension of time, for example, give them plenty of time to respond. If you were dealing with a solicitor on the other side you might ask for an extension late in the day knowing they are likely to be able to decide and respond quickly, but that will not be the case with a litigant in person.
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 in the litigation; on the contrary they are engaged to carry out one specific piece of work at a time. Every time you send a document or communication to an opposing litigant, they will have to decide whether it is something they can deal with themselves without advice 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.
No. The rules for what counts as valid service in cases subject to the Civil Procedure Rules are in Part 6. Apart from the litigant themselves (and employees of companies etc. where the company itself is the litigant), the only classes of people who can (in specified circumstances) be served are a "European Lawyer" or a "solicitor". Service on a barrister is not valid.
The same principle applies to Tribunals. Whilst each tribunal has its own Rules it is common for tribunals to have a rule which refers to the name and address of any representative having to be notified, and correspondence having to be sent to a party's representative, if the party has a representative, but then adding words to the effect that that at a hearing a party may be represented by a person whose details have not been so notified and that the rule does not apply to such a representative.
I have heard that the Bar Council can authorise barristers to act as solicitors so would service on a barrister be valid service then?
The conduct of litigation is a reserved activity under the Legal Services Act 2007 which the Bar Council can authorise individual barristers to carry out. However only a handful of barrister have applied and been authorised to conduct litigation. You can check whether an individual barrister is authorised to conduct litigation here. If a barrister has been authorised to conduct litigation then the barrister is deemed to be a solicitor under CPR 6.2(d) and under the equivalent tribunal rules where relevant. If the barrister is one of the less than 1% of barristers who are deemed to be solicitors then service on that barrister might be valid but, of course, it depends on whether the other conditions laid down in Part 6 of the Civil Procedure Rules (or the equivalent for courts and tribunal not subject to the CPR) are complied with. It would certainly not be safe to assume that you can serve on a barrister just because a particular barrister had represented a litigant at a hearing, even if that barrister happened to be among the 1%.
No. Part 6 of the Civil Procedure Rules (which deals with service of documents) is quite complex. For example whether some manner of service is valid can sometimes depend on whether the person to be served has consented to it, or whether the person doing the serving has made certain enquiries of the person to be served. And, of course, there are certain procedures whereby a party to be served can notify or change an address for service. In these circumstances, where the giving of information can in some circumstances actually affect the question of whether service by some means is or is not valid, and given that it is a criminal offence under the Legal Services Act 2007 (as well as a breach of the Bar Code of Conduct) for a barrister to do anything which comes under the heading of “conduct of litigation”, it would be sailing close to the wind for a barrister to give a substantive response to such an enquiry from a solicitor on the other side.
I thought that both solicitors and barristers were "legal representatives" so why is there a difference?
The Civil Procedure Rules appear to use the phrase "legal representative" with different shades of meaning in different rules. CPR 2.3(a) defines a "legal representative" as including both a barrister, a solicitor, and a solicitor's employee, or a person who, for the purposes of the Legal Services Act 2007, is an authorised person in relation to an activity which constitutes the conduct of litigation. So it may not be entirely clear whether all barristers are "legal representatives" for all purposes under CPR or whether for certain purposes this is intended to only refer to the 1% who are authorised to conduct litigation. Elsewhere in the CPR, for example in CPR 45.39, a party's advocate is referred to in a way which implies that the advocate is not (for the purposes of that rule at least) a "legal representative". In any event Part 6, which deals with service of documents, uses the word "solicitor" not "legal representative".
With regard to Tribunals, whilst each tribunal has its own Rules it is common for tribunals to have a rule which refers to the name and address of any representative having to be notified, and correspondence having to be sent to a party's representative, if the party has a representative, but then adding words to the effect that that at a hearing a party may be represented by a person whose details have not been so notified and that the rule does not apply to such a representative.
If a litigant in person engages a Direct Access barrister - e.g. to represent them at a hearing - are they still a litigant in person under the Civil Procedure Rules?
Yes. They are still a litigant in person. This point was decided by the Court of Appeal in the case of Agassi v Robinson The key word is litigant. A litigant who engages a barrister to represent them at a hearing is not an advocate in person but is still a litigant in person.
I will be appearing as advocate at a Case Management Conference. Can I correspond with the Direct Access barrister instructed by the litigant in person on the other side before the hearing?
Although barristers do not conduct correspondence it has always been recognised that barristers and other advocates should, where possible, be in touch before a hearing to clarify and, if possible, narrow the issues, and for that purpose may send documents related to their work as advocates such as authorities, skeleton arguments, case summaries, draft orders etc. to each other in advance of the hearing.
Although barristers do not conduct correspondence it has always been recognised that barristers and other advocates may need to be in contact immediately after a hearing in order to agree the wording of the court's order where the court has asked counsel to draft it, and for that purpose may send drafts to each other. But beyond matters such as these you should not continue communication with the barrister for the litigant in person but rather should send correspondence to the litigant in person.
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