 John Antell LLB (Lond) CEng MBCS CITP Barrister Email: mail@johnantell.co.uk Clerk Tel: 0845 308 1551
Direct Access Since 2004 it has been possible to go direct to a barrister, both for initial advice, and if court or tribunal proceedings need to be issued (litigation). This is known as Direct Access or Public Access. (Before 2004 clients had to go through a solicitor.) FAQ on Direct Access in Civil matters What is the difference between a barrister and a solicitor?There are two types of lawyer in England and Wales: barristers and solicitors. A person or an organisation Solicitors generally practice as part of a law firm. There will be several solicitors who own and manage the firm (“partners”) and they will employ other solicitors, legal executives, and also staff with no formal qualifications. As a client, your agreement is with the firm as a whole, and the firm can choose who within the firm will do the work. The partner whom you are dealing with may do some of the work himself but most of the work will probably be done by other personnel. Every barrister in self-employed practice is a sole practitioner, so when you engage a barrister to carry out a piece of work such as advising you, drafting court documents, or representing you in court, that barrister will himself do the work. He cannot and will not delegate it to anyone else. If the barrister you normally engage is unable to do a piece of work (e.g. because the work is urgent and he is in court on another case or, for example, on holiday or ill) you can ask that barrister’s clerk for suggestions as to other barristers whom you could engage for that piece of work, but it is then your choice which barrister you engage and you will have a separate agreement with the barrister you choose to engage.
The type of work undertaken Barristers, otherwise known as "counsel", specialise in giving legal advice, drafting documents, particularly court/tribunal documents, and representing the client in court (or tribunal). Before 1990, solicitors were not allowed to represent clients in court in civil cases - except for low value claims and procedural hearings. That restriction has now been removed but it is still the case that in general solicitors will engage a barrister to draft court documents and represent the client in court or tribunal, rather than do this work themselves. The main reason is that solicitors spend most of their time doing other work such as collecting evidence, taking witness statements and dealing with correspondence and so do not have the time to develop the skills which are necessary to represent the client at a trial. Solicitors do give legal advice but, except in cases which are straightforward, will normally, after perhaps giving some general preliminary advice, engage a barrister to give a definitive specialist opinion. Solicitors also draft some non-contentious documents such as Wills and trusts, contracts and conveyances when buying and selling land, and leases, though a barrister may be engaged if more specialist drafting is required. Handling Money Solicitors handle client money, for example during transactions funded by third parties. A bank providing a mortgage will not want to pay the money direct to the customer but will pay the money to the customer’s solicitor on condition the money is used for the purchase of the agreed property and the bank is simultaneously given a charge on the property. The regulatory and insurance requirements associated with handling client money are one reason why solicitors practise in firms which have substantial overheads. Barristers do not handle client money. This means that barristers do not carry out transactions such as buying and selling property (a solicitor might engage a barrister to advise on e.g. restrictive covenants affecting property being bought, but it is always the solicitor who executes the transaction). The fact that barristers do not handle client funds means that barristers only accept client money in payment of a fee for a particular piece of work. For example, you agree and pay a fee for a conference with a barrister. As a result of the conference, and after providing the barrister will information and documents identified as necessary during the conference, the barrister agrees with you, and you pay, a further fee for a written opinion. Later you agree, and pay, a fee for the barrister to draft a Letter of Claim, etc. If you engage a solicitor, the solicitor will in general not ask you to pay for each piece of work individually but will instead ask you to pay, at the outset, a sum of money, say £5,000, “on account” and will then charge an hourly rate for all work done using up the money on account. When the money on account is running low, the solicitor will ask for a further lump sum, etc., and at the end of the case any unused money is returned. Advice: Will going direct to a Barrister for advice save me money?Yes. If you go first to a solicitor and ask the solicitor to arrange for a barrister to advise, the solicitor will take down from you an account of what has happened and what you require advice about (or ask you to write this down) and ask you for relevant documents (contracts, letters, etc.). The solicitor will then scan in the documents you give him, arrange them in order, write a summary entitled " instructions to counsel to advise", and send the package to the barrister. So you have to pay the solicitors' fees for carrying out this preparatory work, as well as the barrister's fees for the advice. If, however, you go direct to a barrister, you will save the solicitors' fees. it is true that if you use a solicitor, the solicitor may have a better initial idea what documents the barrister is likely to require, but as, if you go direct to a barrister, you will be scanning in the documents yourself and e-mailing them to the barrister, it is easy, if the barrister asks for further documents, to send then those further documents by e-mail. Advice: Are there any circumstances in which I should go to a solicitor's firm for advice first?If you want advice about matrimonial difficulties or the welfare of children (family law) then it will usually be advisable for a solicitor to be the first port of call. If you have been accused of a serious crime (criminal law) then you will see a solicitor first. But if it is a matter of civil law (i.e. any matter other than family law of criminal law) - and this FAQ is only concerned with civil law matters - then there are very few cases where there is any advantage in going to a solicitor first. However if you already have a solicitor's firm dealing with a matter involving the handling of client or third-party money (work involving handling money has to be done by a solicitor and cannot be done by a barrister) then it may make sense for you to ask the solicitor to send "instructions to counsel to advise" to a barrister, rather than you approaching a barrister direct, as it makes co-ordination easier since the solicitor will still have to continue to be involved. For example if you are buying land, and a solicitor is in the process of carrying out the conveyancing work for you and you want the advice of a barrister on some particular matter - for example whether neighbours, using part of the land you are buying, might have some rights over it by reason of adverse possession - then the solicitor is likely to already have the necessary information and documents which the barrister would need to advise, so that the fees of the solicitor for packaging this into "instructions to counsel to advise" are not likely to be that great. Also the barrister's advice may well directly impact upon the conveyancing work which the solicitor is continuing to carry out, in terms of, for example, what questions the solicitor should be asking the vendor's solicitor, and what special provisions should be included in the contract of sale which is being negotiated by your solicitor with the vendor's solicitor. So it would normally be simpler, and ultimately more cost-effective, in this particular situation where a solicitor is already actively involved and needs to continue to be actively involved, for you to ask the solicitor to instruct a barrister. However if you prefer to contact a barrister direct yourself, then, of course, you are entitled to do so. You might want to do this if the solicitor is reluctant to seek the advice of a barrister, but you want the assurance of a second opinion. If you do contact a barrister direct in this type of situation, then you will need to obtain from the solicitor, copies of the documents and information which the barrister needs in order to advise. Litigation: Will going direct to a Barrister save me money?Yes. If you use a solicitor, as well as a barrister, in litigation, then typically 25% of the total fees you pay will be barrister's fees for advice, drafting court/tribunal documents, and representing you in court/tribunal, but the remaining 75% of total fees you pay will be the fees of the solicitors' firm. The work which the solicitors' firm carries out in the course of the litigation generally consists of the following:- 1. packaging up "instructions" to send to the barrister for each piece of work the barrister is to carry out, and passing on requests by the barrister for information (and passing back the reply from you)
3. writing letters to the other side
4. interviewing witnesses and taking witness statements
You can see from (2) and (3) above that if you go direct to a barrister, there is some extra work the barrister will need to do, so the barrister's fees will increase (and there will be one-off solicitor's fees if a solicitor is used to take witness statements) but the total is still likely to be about half what it would have been.
Litigation: Why is there likely to be less correspondence if I go direct to a barrister?Most personnel in a solicitors' firm are employees and the firm therefore wishes to take on sufficient work to ensure, so far as possible, that its employees are always fully occupied. However time still has to be found to deal with urgent matters before the relevant deadlines, so work has to be prioritised. If a letter is received from the other side on, say, 1st May, and if that happens to be a slack period, the fee-earner dealing with it at the solicitors' firm may write promptly to the client (say on 3rd May) for any information or instructions required, and, when the client has replied with the required information/instructions on, say 10th May, the fee earner will then take time to compose a complete and considered reply to the 1st May letter, sending the reply to the other side on, say 15th May. On the other hand if, when the letter is received 1st May, that happens to be a very busy time, the fee-earner may, if it is judged not to be urgent, diarise it to be dealt with in 7 days time on 8th May. When it comes to be looked at on 8th May, if it is still a busy time, it may be diarised to be dealt with in another 7 days, on 15th May. When it comes to be looked at on 15th May the fee-earner may decide - given that it is now 14 days since the letter was received - that it now does need to be replied to and may reply to the other side with a holding letter - e.g. "Thank you for your letter. We will take instructions from our client but we would point out that..." - on the same day writing to the client seeking information/instructions. When the client has replied with instructions/information on, say 22nd May, the fee earner will then write again to the other side, perhaps on 29th May, giving a full response to the original 1st May letter. It can be seen that in the second example, extra time has been gained, and the workload managed, but this is at the cost of writing two letters rather than one. Barristers are self-employed and will tend to work more or less hours in a week depending on their workload, so even if he is busy when a client forwards to him a letter received from the other side, a barrister is still likely to be able to make time - by working more hours that week - to obtain information from the client, and draft a reply for the client to send, within a reasonable period, so that no holding letter is necessary. This is one reason (probably not the only one) why there is likely to be less correspondence if you go direct to a barrister. It may also be noted that barristers do not themselves send letters to third parties: they draft letters for the client to send out, and the client remains in control of correspondence. This means that even if a holding letter ("Thank you for your letter. I am seeking legal advice and expect to be able to respond fully by...") did become necessary, because the holding letter would be both written by, and sent out by, the client, no fee is incurred.
Litigation: are there any circumstances in which going direct to a Barrister could actually cost more?That is unlikely but could happen in some circumstances. For example, a thoughtful client will often want to ask their lawyers not only questions directly related to the dispute in hand, but also wider questions such as, “what can I do to reduce the likelihood of a similar dispute arising in future?” “Why is the law as it is?” etc. If a solicitor is engaged, the first port of call for any question will be the solicitor who, not being a specialist, may not be able to answer these wider questions in any great detail (though they may be perfectly competent in carrying out the solicitor’s role for the current dispute). On the other hand, if the client goes direct to a specialist barrister, they will find the barrister more than willing to answer any question the client has. This can lead to greater costs, not because the barrister is more expensive but because the client ends up using the services of the barrister more. It is still unlikely that these extra costs would actually cause total costs to be more than if a solicitor had been engaged, but it does depend how much use is made of the barrister for advice going beyond the case in hand. Another example where costs may not be saved is if the client has difficulty carrying out that part of the litigation work which he is tasked with dealing with, and requires more than the usual level of advice about this from the barrister - or if, due to delays which result in missing court-specified deadlines, the court imposes a costs penalty. If this happens the barrister will probably suggest that the client arranges for a solicitor to carry out in future the work which the client is having difficulty with. Litigation: Why does cost matter? Won't I get all the costs back when I win my case?The normal principle of "the loser pays" does not always apply. For example, if you win and the court orders your opponent to pay your costs in principle, the Cost Judge who later adjudicates on any disputes as to the amount of costs you can claim, may not allow you the full amount of your costs if he considers that they are "disproportionate" - for example if the total costs are large compared with the amount in dispute. If you win but are not awarded as much as your opponent has previously offered in settlement, then you will usually not recover any of your costs incurred after the point when you rejected the offer (and you would normally be ordered to pay your opponent's costs incurred after that point). Then there is the possibility that you might lose the case because even seemingly strong cases can be lost for a variety of reasons. And some tribunals award costs only in exceptional circumstances. So for all these reasons, it is important to keep costs as low as it is possible to do without reducing the likelihood of success.
Litigation: What kind of work would I need to do if I go direct to a barrister?First you will need to write up, and email to me, a chronological account of the background to the dispute. Then you will need to look for relevant papers (letters, emails, contracts, etc.) and email them to me after, in the case of paper documents, scanning them in. Depending on what the case is about you may need to extend your search outside your home or office. For example if the case is about disputed land and it is important to know who was using the land 20 years ago and what for, whether land was cultivated as a garden by an adjoining house, and fenced in, for example, and over what period, you would need to contact aerial photograph companies, search for old maps, make enquiries to see if the people living there (or their relatives who may have visited and remembered playing in the garden) can be traced, etc. The actual taking of witness statements is normally done by a lawyer but first you would need to contact the witnesses and ask them briefly and in broad terms what they remember so that it can be decided whether it is worth a witness statement being taken. You will need to read everything you find and decide whether it is relevant. I can advise you on the sort of documents which may be relevant, and if you cannot decide whether a particular document is relevant and so should be emailed to me, you can scan it in and email it to me anyway, for me to decide. But it would not be cost effective (in terms of my fees and your time in scanning in documents) if you sent me everything so the main burden of reading everything and deciding whether it is relevant will be down to you. At the "disclosure and inspection of documents" stage of litigation you would need to produce a list of the documents (emails, letters, contracts, notes, photographs, etc.) which you have which are relevant to the case. This can be done fairly automatically, using standard computer software, if the documents have already been scanned in with a file name giving a date and description. In preparation for the trial at the end of the litigation process several copies of the "trial bundle" need to be produced. If the court directs you (rather than your opponent) to do this then, again, using standard computer software can help, but some time will still need to be spent on this. A not inconsiderable about of work may be necessary during the course of the case but, as well as saving the costs of engaging a solicitor, you can (if you win and are awarded costs) claim for your time in doing this work at a minimum rate of £18 per hour.
Litigation: In order to save money, I am planning to conduct my case myself up until shortly before the trial. Can I engage a barrister just to represent me at the final trial?
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