What Does "Representation" mean?



The difference between a barrister and a solicitor

When people talk about being represented they are often thinking primarily about a barrister representing someone at a court or tribunal hearing - i.e. appearing as an advocate

But there is another meaning of represented. A solicitor who signs forms and sends letters, on behalf of their client, to the other party and to the court/tribunal office, is also called a legal representative.  

If court/tribunal staff (or anyone else) ask if you are legally represented, or if you are using an online court/tribunal system which asks about legal representation, it is important to give a clear response to avoid confusion. Bear the following in mind:

  • Anyone who does not have a solicitor is called a Litigant in Person. An Litigant in Person signs and sends letters themselves and gives their own address as the address to which communications and formal documents from the court/tribunal office and other parties should be sent. (By contrast, if someone has a solicitor then all communications and formal documents are sent to their solicitor.)
  • A Litigant in Person can represent themselves at a hearing or, alternatively, can engage a barrister to represent them at a hearing, but even if they engage a barrister to represent them at a hearing they are still called a Litigant in Person because they are still dealing with the litigation personally – i.e. personally dealing with the dispute as a whole and in particular with the actual sending of correspondence and documents between the parties and the court/tribunal (even though what they sign and send out may have been drafted by a barrister). 
  • Some court/tribunal staff may make the assumption that if you are an Litigant in Person that you will be representing yourself at a hearing, which might not always be a correct assumption.

Avoiding confusion

To avoid any confusion, if court/tribunal staff ask whether you are represented you could say something like 

“I am a litigant in person (so all communications should be sent to me) but I have engaged a barrister under Direct Access to represent me at this particular hearing.”

It is possible that the other side might misguidedly send an email to me, rather than to you (but usually with at least a copy to you). If this happens you will need to politely point out to the other side that I am not a solicitor and that you are a Litigant in Person, and that all correspondence, whether emails or letters, must be sent to you and not to me. 

Paradoxically, for the reasons explained below, the other side mistakenly sending communications to a direct access barrister you engage is a problem more likely to happen if the other side have solicitors 


Correcting misunderstandings 

The above explanation about the respective roles of barristers and solicitors is correct in 99% of cases but because of changes to the regulation of barristers and solicitors there are some other theoretical possibilities. Most solicitors are aware of these other possibilities and this can, unfortunately, lead them to confuse direct access barristers with the role of solicitors. 

Until the late 20th Century only people qualified as solicitors practised as solicitors, and only people qualified as barristers practised as barristers. There are retired solicitors and retired barristers, of course, who are no longer practising but anybody practising as a solicitor, for example, was qualified as a solicitor and not qualified as a barrister. This means that if a solicitor wished to become a barrister they first had to apply to have their name removed from the roll of solicitors before they could qualify as a barrister. Likewise a barrister would have to apply to be "disbarred" if they wished to qualify and practise as a solicitor. However now that dual qualification is permitted there are some people - though still relative few in percentage terms -practising as solicitors who are dual-qualified as both solicitors and barristers. 

Until recently they key thing which solicitors did which barristers were not allowed to do was the conduct of litigation. To get a feel for what conduct of litigation means, think of the conductor of an orchestra. The conductor makes sure that each musician plays their part at exactly the right time. The conductor does not themselves play any instrument but makes sure that, from the beginning of the music to the end, everyone else comes in at the right time. Here the analogy breaks down because a solicitor, as well as conducting the litigation, also does some of the work, but the basic idea of conducting litigation is that the solicitor starts the case by signing and sending the Claim Form to the court/tribunal and initiating other formal steps in the process, engaging a barrister on behalf of the client at the appropriate points where a barrister is required to advise, draft documents, and represent the client in court/tribunal.

A barrister who was dual-qualified as a solicitor could conduct litigation of course, but more recent regulatory changes now mean that a barrister can apply to the Bar Council to be authorised to conduct litigation without qualifying as a solicitor. So there are now three possibilities

1. You can engage a solicitor to conduct your case (the solicitor will in turn engage barrister at the appropriate points).

2. You can engage a barrister directly to conduct your case (that barrister could engage another barrister to carry out the work barristers traditionally do or do it themselves)

3. You can engage a barrister directly to do only the things barristers traditionally do (you yourself have to conduct the case by, for example, signing and sending the Claim Form which a barrister has drafted)

(1) above is what always happened before 2004 and still happens in a lot of cases. (3) is the usual way of engaging a barrister direct now that (since 2004) that has been an option. (2) is rare in practice (since only a few barristers are authorised to conduct litigation) but solicitors who are used to (1) sometimes confuse (2) which is rare, with (3) which is relatively common now.    

If the other side have a solicitor, it is possible that the solicitor might confuse (2) and (3), or might even think that I am a solictor, and misguidedly send an email to me, rather than to you (but usually with at least a copy to you). If this happens you will need to politely point out to the solicitor on the other side that I am not a solicitor and that you are a Litigant in Person, and that all correspondence, whether emails or letters, must be sent to you and not to me. 

The situation is complicated by the fact that a solicitor is allowed to act as an advocate in the County Court and in some Tribunals (and in some higher courts if, exceptionally, the solicitor has higher courts rights of audience). So occasionally a party’s solicitor may also do the work of an advocate, rather than engaging a barrister, for a particular hearing, such as a case management hearing, and when doing that they may not clearly distinguish, in their own mind, between when they are acting as advocate and when they are acting in the traditional solicitor role. Shortly before any hearing each advocate will normally contact the other to e.g. inform them of any legal authorities (statutes or decided cases) they intend to refer to, and at the end of the hearing the judge will often ask the advocates to draw up and agree the precise technical wording of the order the judge has decided to make. With complex orders and/or if one advocate is busy it might take a day or two to finalise the order but thereafter the advocates do not have any further contact (unless and until they are instructed to appear at some future hearing). However a solicitor advocate will be continuing as a solicitor even when his duties as an advocate have ended and sometimes they may not be as clear as they should be about the two roles. 

You may find that a solicitor sends an email to you but with a copy to me. This also should not be done. All correspondence needs to go to you only, so that you can decide whether it is a routine matter (e.g. a request for a better copy of a document already supplied) or something you wish me to advise about - such as a formal request for further particulars of an allegation - and draft a response for you to send. If I receive a copy of something sent to you before you have decided how to deal with it, there can be misunderstandings with you perhaps assuming that I am considering something when in fact I am waiting for you. 


Do not give my name and address for communications    

One simple thing you can and should do is to take care that you do not put "copy to John Antell" on any letter, and do not cc (rather than bcc) me on any email you send. If you do not give my name then there is no risk of the other side sending me anything mistakenly thinking that I am a solicitor (or mistakenly thinking that I am a one of the very few barristers authorised to conduct litigation). It is not a matter of having to keep secret the name of a barrister you have consulted - if necessary and appropriate you can say "I may engage a barrister direct for advice and to represent me at some hearings but I am still a litigant in person so all communications should be sent to me" - but of avoiding doing anything which might prompt your opponent to, perhaps unthinkingly, send communications to your barrister (or copy your barrister in on a communication to you). 

Exceptions

There are, however, just a few special circumstances in which you can give my name:

When a form (or online system) specifically asks you about direct access counsel

Most court and tribunal forms and online systems have a single question asking whether you have a legal representative. A single question like this will be directed at whether you have a representative to conduct the litigation - i.e. a solicitor - and as a Litigant in Person you should answer No. However a few forms have a more detailed question like this:

Are you legally represented? Yes/No

If Yes, is your legal representative (please tick as appropriate)
  • a solicitor
  • direct access counsel instructed to conduct litigation on your behalf
  • direct access counsel instructed to represent you at hearings only

in which case you can and should reply Yes and tick the direct access counsel instructed to represent you at hearings only option. 

Generally it is those forms and online systems concerned with appeals (and judicial reviews) which contain a detailed question like this about direct access counsel. In appeals there are generally no live witnesses (and attendance by the party themselves, if represented, is not generally mandatory) so that the court/tribunal office can, and often does, arrange (or re-arrange) a hearing date simply by contacting the barristers' clerks directly, hence the need for direct access counsel's contact details to be given.


When the other side ask for the name of the barrister who will be representing you at a forthcoming hearing

Shortly before any hearing the barristers on each side will normally make contact to e.g. inform each other  of any legal authorities (statutes or decided cases) they intend to refer to at the hearing, the other side may well ask you for the name of the barrister who will be representing you so that they can pass the name on to the barrister they have instructed. In these circumstances it is fine to pass on the name of the barrister who is to represent you at the forthcoming hearing. You only need to pass on the name. If the other side ask you for your barrister's professional address or email address, as well as the name, you should double-check that they realise that you are a Litigant in Person and that all formal documents should be served on you - not on any barrister you instruct. Your barrister's professional address is not a secret - the professional address of all practising barristers appears on the Bar Standards Board website - but if the other side simply want the name of your barrister to pass on to their barrister, they do not need the address as well, so if they ask for an address for your barrister that may indicate some confusion and you should double-check that they realise you are a Litigant in Person. 


When solicitors on the other side offer to send a hearing bundle direct to your barrister

At all but the simplest hearings the barristers and the judge will be using identical copies of a paginated and indexed hearing bundle containing all the documents to be referred to at the hearing. The contents of the hearing bundle generally have to be agreed between the parties and one party is designated as the party responsible for producing identical hardcopies of the hearing bundle and delivering them to the court/tribunal office, and to the other side, in advance of the hearing. Barristers need to have a copy of the hearing bundle in good time before the hearing so that they can prepare - they may have seen some, perhaps most, of the documents before but they need to prepare using the page references in the hearing bundle. If solicitors on the other side are responsible for producing the hearing bundle, and time is short, they may offer to send your copy of the hearing bundle direct to me rather than, as is usual, send it to you initially for you to pass on to me. Whilst this sounds like a helpful suggestion, bear in mind the following:-

  • If the hearing bundle were delivered to you you would have a chance to check what it contains (for example if it is a trial bundle you need to check that all documentary evidence in it has previously been disclosed). Make sure that the solicitors on the other side are not using the offer to send the bundle direct to your barrister as a way of avoiding scrutiny of what that have put in the bundle - e.g. make sure you have an opportunity to look at a PDF version of the bundle before agreeing to the hardcopy being sent direct to your barrister. 
  • Do not assume that my professional address is where the hardcopy bundle should be sent. If time is short and I am travelling (e.g. for a hearing in another case) other arrangements may be appropriate. Give the solicitors on the other side the phone number of my clerk and suggest that they phone my clerk for advice about where the bundle should be sent or whether it may be easier for me to collect it from the solicitors' office if that is in the same city as the court/tribunal where the hearing is to take place.             
      

Disclaimer

This information page is designed to be used only by clients of John Antell who have entered into an agreement for the provision of legal services. The information in it is necessarily of a general nature and is intended to be used only in conjunction with specific advice to the individual client about the individual case. This information page should not be used by, or relied on, by anyone else. 

The information on this page about specific computer techniques is provided for information purposes only. Every reasonable effort has been made to ensure that the information is accurate and up to date at the time it was written but no responsibility for its accuracy, or for any consequences of relying on it, is assumed by me. You should satisfy yourself, before using any of the techniques, software or services described, that the techniques are appropriate for your purposes and that the software or service is reliable.

This page was lasted updated in December 2017          Disclaimer