The History of Direct Access to Barristers



During the course on the 19th Century, barristers became firmly a referral profession, that is to say, what had for a long time been common practice hardened into a firm rule that clients had to go to an solicitor, rather than direct to a barrister. Like all historical questions of cause and effect, it is difficult to prove, at this distance in time, what were the main and contributing causes and, unlike some other historical changes, it has not been, so far as I know, the subject of very much research, but the following is a brief overview indicating what some of the causes may have been.

Barristers, otherwise known as "counsel" (or serjeants-at-law as members of the bar were known in the Middle Ages) are what most people think of as "lawyers", giving legal advice, drafting pleadings, and representing clients in court, but, for a number of reasons, litigants also had occasion to engage other legal practitioners in addition to a barrister.

Nowadays civil court proceedings, if not commenced online, are commenced by a Claimant sending multiple copies of a Claim Form and Particulars of Claim to the court office with the issue fee. The court office will then formally "issue" the Claim by entering the case in the courts records and assigning a case number, and stamping the documents with the court "seal". One copy of the Claim Form and Particulars of Claim is then sent to the Defendant who responds by sending an Acknowledgement of Service form (or a full Defence if the Defendant is in a position to provide it as this stage) to the court office. All this can be accomplished by post. To save time the Claimant, rather than using the post, can call at the court office and ask for the Claim Form to be "issued" there and then but in doing so they will simply be handing over a document and talking to a member of the court's administrative staff behind the counter - there is no question of having to appear in court before a judge simply to start a case. Of course ultimately, if the case is not settled by the parties by agreement, there will be a trial before a judge at which the Claimant and Defendant (together with their witnesses) will appear in court, usually represented by a barrister, but no court appearance is needed simply to start off the case. It was different in the Middle Ages. Originally both the Claimant and the Defendant had to appear in court at the start of the case and a trace of this ancient requirement can be seen in the fact that the act of the Defendant in sending an Acknowledgement of Service form to the court office is still, even today, known as "entering an appearance"         

Particularly before the advent of the railways, it was not at all easy for litigants to get to court so there was a demand for someone else to appear in court as the litigant's "attorney" to commence the case, known as "suing out process", or to enter an appearance. A litigant's attorney might be a trusted servant or relative but, over time, there came to be freelance attorneys who would act for a fee for any litigant. There were also essoiners whose role it was to make formal excuses for non-appearance in court. As well as dealing with some formal pre-trial procedures - which included watching out that the 'return day' for a party's cause was not missed (there were three days grace, a fine for not appearing until the fourth day and automatic discontinuance was the penalty thereafter) attorneys also dealt with the formalities of execution (enforcement) of judgments given at the end of a trial. Sir Edward Coke, writing in the early 17th Century, referred to attorneys of his day as officium laboris - "following the advice of the learned and dispatching of matters of course and experience"

A number of other factors meant that there was much for the officium laboris to do. Before the invention of photocopiers, copying of documents was done by transcription. Over the centuries court procedure came to use more and more written documents and procedures developed whereby parties could be required to disclose documents in their possession relevant to the case so that the other side could make copies. However a number of factors would have meant that litigants would generally not themselves have been above to deal with this process. The problem would not have been directly in the transcription process itself, as the services of copyists were readily available for a fee. Rather the difficulty would have been in identifying the documents to be copied since, because of the costs of of transcription, copying everything just in case it was needed would have been uneconomic.  

A party might be obliged by court rules to allow copies to be made of documents they held which were relevant to the case – a process known as “discovery” – but they were not required to allow them to leave their possession. A practice grew up where clients would deposit documents with their attorneys (or solicitors, who were the equivalent, for cases in the courts of chancery, of attorneys for for the common law courts) and each party’s attorney/solicitor would visit the offices of the other party’s attorney/solicitor (who would typically be in the same city - usually London) in order to make copies by hand. It might be agreed between attorneys/solicitors that the firm holding documents would be trusted to make (or engage a freelance copyist to make) and supply true copies, but a literate person, on the spot, with some knowledge of the issues in the case would be needed to first identify the documents to be copied. 

Before the 19th Century literacy rates were somewhat lower than they now are and, before the building of the railways, travelling from the country to London was not easy. These factors alone would have made it difficult for litigants, but there would also have been a further factor making attorneys essential. Because of the cost of copying by transcription it would have been desirable that the person on the spot, identifying documents to be copied, should have some basic degree of legal knowledge so as to be able to decide which documents were clearly not relevant and so not worth making copies of. Of course the advice of a barrister could ultimately be sought on which documents were relevant to the case but it would have been important to identify, at an early stage, the clearly irrelevant so that they were not unnecessarily copied. 

For such reasons there has always been a demand for what might be called non-barrister legal personnel, but the idea of a particular class of non-barristers being an intermediary or "gateway" to the services of a barrister seems to date from the early 18th Century and the formation of a Society of Gentleman Practisers in the Courts of Law Equity in 1729. We know this from the 1850 test case of Bennett v Hale and Davis. In that case the Lord Chief Justice, Lord Campbell, when rejecting an argument that there was actually a rule of law requiring barristers who appeared in the superior common law courts to be engaged through an attorney, nevertheless spoke approving of the practice as being "the almost uniform usage which has prevailed upon the subject for more than a century" contrasting it with the former position where "for a long time the attorney only sued out process and did what was necessary in the offices of the Court for bringing the case to trial, and for having execution on the judgment". 

Lord Campbell added that despite not being enforced as a rule of law, "[the attorneys'] intermediary agency between the parties and the counsel, so conducive to the due administration of justice, will I hope remain unimpaired". Why was the practice of attorneys being an "intermediary agency" considered so important that it became "an almost uniform usage" in the 18th Century? When reading his judgment one gets the clear impression that Lord Campbell, while holding that attorneys were not required by law in cases in the superior courts, was nevertheless anxious not to encourage any change of practice, and it is possible that the statement that attorneys being an intermediary agency being "so conducive to the due administration of justice" was simply a matter of oratory. Writing in 1896 at a time when solicitors had firmly established themselves as intermediaries, Edmund Christian, in A Short History of Solicitors (p.136), expressed the view that this had come about simply because in the 18th Century barristers had preferred the more laborious part of their work to be taken over by attorneys who were keen to take it on, rather than for any more principled reason. That may be the case but an alternative, or contributory, explanation for Lord Campbell's words may lie in the practicalities and sensitivities of the taking of sworn witness statements known as affidavits. Affidavits whereby evidence is given in written form rather than orally before a judge - or is given partly in written form with only cross-examination before a judge - were increasing being used.

It is a fundamental principle that a barrister cannot be a witness in a case in which he also appears in court as advocate. A barrister who witnessed a traffic accident, for example, could not represent either of the parties in court. This is for two reasons. First of all, even if the party engaging the barrister did not want him as a witness, the other party might, in theory want to call the barrister as a witness depending on the answers given by other witnesses in court. If that were to happen the trial would have to be abandoned, at considerable cost, and new counsel appointed, so the possibility that that could happens means that a barrister with his own knowledge of the facts must not take the case. Secondly, if a barrister has personal knowledge of the matter arising in the court case, he could be "professionally embarrassed" and have to withdraw for that reason, again at considerable cost to the parties. A barrister works on the reasonable assumption that his client is telling him the truth. Occasionally what a barrister's client tells him seems inherently unlikely, but if the client insists that it is the truth, it is the duty of the barrister not to judge his own client but to represent him in court to the best of his ability and to leave it to the court to decide on the truth of the matter. Every barrister has clients whose story seems unlikely but, equally, every barrister will have had cases where what at first sight seems unlikely turns out, when tested in court, to be entirely probable. If, however, the barrister knows that what his client is saying is untrue (e.g. because the client has told him one thing privately and then says the complete opposite in court) then the barrister is "professionally embarrassed" and cannot continue because he cannot knowingly mislead the court. A barrister who had their own knowledge of the facts in the case would be placed in an invidious position. If their client gave evidence which conflicted with the barrister's own recollection the barrister would have to consider how good they considered their own recollection to be and whether or not it was the case that  they knew what their client was saying was not true and so was "professionally embarrassed". To avoid such difficulties there is a firm rule that a barrister cannot take a case in which he has personal knowledge of matters which might be in dispute.   

Now, turning to the question of the taking of witness statements, the accuracy of some of the content of witness statements will invariably be disputed between the parties but, in addition, the way in which witness statements were taken may itself be a matter of dispute. In the 18th Century, when literacy rates were lower than they now are, when paper was expensive, and when everything had to be written by hand, a scribe would, of necessity, have had to ask the witness to give their account, interrupting them to ask clarifying questions, before, having got the whole account, they started to write. It is not difficult to see that because of the necessary interaction between witness and writer involved in writing down the witness' evidence in this way, and because the witness might not be able to read what was written to check it, the other side, seeing a witness saying things in writing with which they disagreed might come to suspect that what was written down was not the unvarnished testimony of the witness but had been subject to improper embellishment by the writer. It is not necessary to speculate about how often such suspicions might have been true in 18th Century England in order to appreciate that the theoretical possibility of this happening meant that it was a legitimate question for cross-examination at trial, so that it was important that barristers should not be involved in taking down witness evidence, which meant that an attorney or solicitor would be needed to do this work on behalf of the client. The attorney/solicitor would need to communicate direct with the barrister - e.g. for advice as to what factual matters were legally relevant which the witness should be asked about.

If an attorney/solicitor was to be an "intermediary" for the specific purpose of obtaining witness statements, it is not difficult to see that in an age when literacy rates were lower, and travel and communication more difficult, it made sense for the attorney/solicitor to be an intermediary more generally between client and barrister, handling all communications once litigation had commenced.

During the 19th and 20th Centuries, gradually the need for an attorney/solicitor to carry out many of the tasks they had traditionally done would have started to diminish. Literacy rates greatly improved so that by the end of the 19th Century the great majority of citizens could read and write so that witnesses could write their own witness statements or, at least, if a professional investigator were to be used to interview witnesses and take statements, the client themselves could provide the investigator, in writing, with the necessary background information about what the dispute was about. The building of the railways meant that travel became easier. Photocopiers became widely available in the middle of the 20th Century and word-processing facilities, which would allow words to be inserted in existing text without having to re-type large sections of text, came into widespread use with personal computers in the last quarter of the 20th Century.     

But if attorneys/solicitors were general 'intermediaries' between client and barrister the client could not decide to do some work himself and only pay the attorney/solicitor for the work which required an attorney/solicitor - the client had to take, and pay for, the entire package of services. 

It appears that, during the 19th Century, there was both pressure to relax the rule of practice that barristers must be instructed through an attorney/solicitor, and a corresponding effort by attorneys/solicitors to counteract that pressure by trying to enshrine the practice as a rule of law. The 19th Century was also the century during which those working as attorneys or solicitors sought, and gradually achieved, professional status. To what extent the pressure to maintain and formalise the rule was based on perceived public interest and to what extent the private interests of attorneys/solicitors were uppermost, is difficult to say, but some key events were as follows.        

In 1831 The Society of Attorneys Solicitors Proctors and Others not being Barristers Practising in the Courts of Law and Equity in the UK was given a Royal Charter.

When the modern County Court system, designed to facilitate smaller claims being heard locally, was introduced by the County Courts Act in 1846, it enacted that a barrister was not to be allowed to appear in any County Court unless he was instructed by an attorney. 

In 1850 in the test case of Bennett v Hale and Davis an attempt was made to persuade the court that there was a rule of law, established by immemorial usage, that prevented barristers appearing in the superior courts also unless instructed by an attorney. The argument that there was such a rule of law was rejected by the Lord Chief Justice, Lord Campbell. He did express the view that the intervention of attorneys was a beneficial development but he held that it could only be enforced by the professions themselves, not as a rule of law:

If immemorial usage be relied upon, we must remember that serjeants countors and other counsel existed in England long before the time of Edward I.; and there seems every reason to believe that they long continued to communicate directly with the parties. Chaucer speaks of

     “A Serjeant of the lawe ware and wise, That often hadde yben at the parvis”

The pervise is well known to have been a sort of exchange at St. Paul's, where all ranks met to do business, and the serjeants at law, like Roman patrons, gave advice to all who came to consult them. Afterwards each serjeant at law had a pillar in the cathedral assigned to him, where he stood and conversed with his clients. The advantage to be derived from subdividing the business of conducting a suit, and having two orders in the profession of the law between whom it should be distributed, became more and more felt; but for a long time the attorney only sued out process and did what was necessary in the offices of the Court for bringing the cause to trial, and for having execution on the judgment. I highly approve of the demarcation finally drawn between the functions of the attorney and those of the counsel, and I believe that the intervention of the attorney between the counsel and the party has greatly contributed, not only to the dignity of the Bar, but to the improvement of English jurisprudence. I revert to the practice of former ages only for the purpose of shewing that the onus here does not lie upon the defendants to vouch an Act of Parliament or rule of Court, or decision, to support the privilege which they claim.

I am by no means insensible of the inconvenience which may arise from this privilege being judicially recognized. But I do earnestly trust that it will not alter the almost uniform usage which has prevailed upon the subject for more than a century, and that the interference of the Judges to rectify any abuse of it will not be necessary. Exceptional cases may again occur, though very rarely, when it may be fit for barristers to plead in civil suits, instructed only by the parties; but I hope that they will continue generally to adhere to what has been considered the etiquette of the Bar. Although conscientiously bound and ever ready to render their best assistance for the discovery of truth and the vindication of right, they are at liberty, under the control of the Courts, to lay down conditions upon which, for the public good, their services are to be obtained.

Nor can that highly honourable and useful branch of the profession, the attorneys, be prejudiced by this decision; for it would be penal for any class of men to perform any of the functions which properly belong to an attorney; and their intermediary agency between the parties and the counsel, so conducive to the due administration of justice, will I hope remain unimpaired.

At any rate we can at present only look to see how the law is; leaving any inconvenience which may be produced by it to be remedied by the authority of the Judges or the Legislature.

Just over 30 years later, in 1883, The Society of Attorneys Solicitors Proctors and Others not being Barristers Practising in the Courts of Law and Equity in the UK persuaded the newly formed Bar Committee, which set rules of professional practice for barristers, that barristers should, as a rule of professional practice, only accept cases via solicitors. The minutes of the first meeting of the Bar Committee, on 5/5/1883, record that "they have been able to work in harmony" with the society and a resolution was passed that

it is not desirable to alter any existing practice under which Barristers do not see or advise clients without the intervention of Solicitors

This would appear to be the point at which what had been a general practice hardened into a firm rule supported by the body representing Barristers as well as that representing Solicitors (by this time, as a result of the Judicature Acts, Proctors, Attorneys had been renamed Solicitors - to reflect this, in 1903, the Society changed its name to simply The Law Society). Not all barristers thought making solicitors the sole gateway to barristers was a good idea. John Marshall of Tunbridge Wells, a barrister of 34 years' standing, wrote to the Bar Committee in November 1883 asking that

consideration should be given whether the Public cannot have advice and conferences with a Barrister at a moderate fee without being obliged to have recourse in the first instance to a solicitor, at, in many cases, a ruinous cost

but his arguments did not prevail and the rule remained in place for over 100 years until 2004.



It not uncommonly happens that when a rule is laid down, that rule itself leads to further practices growing up around the rule which further entrench it. The wide availability of personal computers towards  the end of the 20th Century, and almost universal literacy, meant that most ordinary people could produce typed documents and, by scanning and printing, produce copies of documents very quickly and easily. However, by then, the fact that most litigants engaged solicitors, had resulted in court rules which assumed the involvement of solicitors. For example the administrative systems of many courts came to depend on the parties' solicitors holding the key court documents (rather than the court itself keeping a case management file). And, to take another example, whilst court rules did not require individual litigants to engage a solicitor, a limited company was required to engage a solicitor because a company director was not permitted, by court rules, to sign formal court documents in the litigation on behalf of the company. The growth in the use of limited companies by individual traders meant that by the end of the 20th Century a large proportion of litigants were not permitted to litigate without a solicitor.    

However, in 1999, civil procedure in the courts was reformed in what are known as the Woolf Reforms so that, for example, all courts now have case files holding the essential documents for the management of litigation, and a director is now allowed to sign court documents on behalf of his company.

Following these reforms in court procedure, the Bar Council established a working group chaired by Sir Sydney Kentridge QC which reported in 2002 that the Bar should again allow direct access to barristers for clients in civil cases. 


There are still many civil cases where a solicitor might be needed, however, and the Bar Code of Conduct provides that a barrister instructed direct must always consider whether a solicitor is needed for some specific reason. Apart from the obvious case where the client cannot use a computer, even very highly educated and articulate clients, quite proficient in using a computer, can sometimes find, because they are personally involved, that it is difficult to maintain sufficient detachment to be able to set out in writing, in an ordered way, the facts of their case and so a solicitor may be required to take a proof of evidence. And, to take another example, certain types of case (such as employment cases) are such that it is difficult for the client to judge what, out of all the detailed knowledge they have of dealing with an organisation over the years, is relevant, so that an in-depth interview by a solicitor over many hours is needed.

In 2010, the Bar Council allowed direct access in family and criminal cases as well, though the nature of some family cases, and the majority of criminal cases, is such that a solicitor will still be required. The key difference is, however, that solicitors are no longer required because of a fixed rule but only where there is specific work which calls for their expertise, such as finding and interviewing defence witnesses in a criminal case.  


Notes:

1. In order to keep the above short account readable, I have used the modern words barrister and counsel for those who appeared in court to argue their clients' cases but, certainly before the 16th Century, the first of those words is anachronistic. During the 14th Century counters were organised into a fraternity or guild known as the order of serjeants at law. In the 16th Century, when there was a great increase in cases, more junior counsel who had not been admitted as serjeants but who had completed their initial training in an Inn of Court and been called to the bar of the Inn, were allowed to practise in the court of King's Bench (though not in the court of Common Pleas) and became known as barristers. In the 17th Century the rank of King's/Queen's Counsel was established which was conferred on the most senior barristers. This rank took precedence over serjeants which reduced the attractiveness of the order to aspiring counsel and when all courts were opened to barristers in 1846, the order of serjeants dwindled and eventually died out. The last serjeant, Lord Lindley, died in 1921.

2. Similarly, I have used the modern word solicitor for those legal practitioners who carried out ancillary work connected with the progress of a case through the court but the meaning of that word has changed over the centuries. A solicitor was not originally a specific class of lawyer but was the name given to the function of anyone who "solicited causes". Later, in the 17th Century, the word came to be applied to the attorneys who practised in the chancery courts rather than the common law courts. The equivalent in the ecclesiastical and admiralty courts were known as "proctors". In 1831 they came together in the Society of Attorneys Solicitors Proctors and Others not being Barristers Practising in the Courts of Law and Equity in the UK.  In the 1870s the Judicature Acts merged the common law courts and courts of equity and those who were formerly named attorneys and proctors came to be known as solicitors. A Royal Charter in 1903 changed the name of the society to simply The Law Society.                                       

 

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