When do I need to engage solicitors as well as a barrister?



The origin of Solicitors

A trial necessarily involves a judge (or a judge and jury) the parties to the dispute, barristers who represent each party and witnesses who give evidence and are questioned by the barristers. But as well as these personnel there have always been, to a greater or lesser extent, other legal personnel who find a niche and make a living by providing support services.

The type of support services there is a demand for has varied over the centuries. Particularly before the building of the railways, there was demand for local agents to be a bridge between clients and barristers who were based in London and other cities. Before literacy became almost universal in England, and before the invention of the photocopier, the ability to write down a witness's evidence and copy documents (by hand) was an important support service. And even through most of the 20th Century, although office machines such as typewriters and photocopiers were available, things which today we take for granted - such as being able to insert words in a document such as a witness statement or a bundle index - were still more often done by complete manual retyping of a page rather than by expensive word processing machines, the widespread use of computers not coming about until towards the end of the century. 

The personnel who have provided such support services over the centuries have been known by various names, and names which later came to be used as professional titles were originally simply the names of jobs or functions. 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 its Royal Charter as an umbrella group.

From then on the rise of solicitors as a specific profession proceeded apace. Attorneys and Proctors became known as Solicitors and at the dawn on the 20th Century solicitors, having petitioned for the name of their society to be changed to simply The Law Society, had become the indispensable gateway to the services of a barrister. Nobody was allowed to engage a barrister except through a solicitor. Fortunately this rule no longer applies (it was abolished in 2004) because the wide availability of computers now makes engaging a barrister directly - thus saving solicitors' fees - a practical option in the majority of cases. There are still some situations, however, where it is advisable to engage a solicitor as well as a barrister.

So why and when might you need to engage solicitors as well as a barrister in a civil case? (This article is only about civil cases: you will usually need to engage solicitors in a criminal case unless it is a relatively minor regulatory offence).

When a solicitor might be needed as well as a barrister 

1. A client who has never used a computer before and has no intention of starting, would need to engage solicitors as well as a barrister. For someone reading this webpage, this is unlikely to apply, although if going away for a period without to a computer/printer/scanner and the internet, they might need to engage solicitors to ensure that deadlines set by the court/tribunal are met (a solicitor is an attorney-at-law and can, if a client instructs them to, sign a document, other than a witness statement or disclosure statement, on the client's behalf). 

2. A client not able to read and write in English would need to engage solicitors. A client who is neither able to read/write English nor to speak/understand it, would need to find and engage a bilingual English-qualified solicitor, as using a interpreter is rarely satisfactory - law is a complex matter and things may be lost in translation.  

3. If there is litigation on foot and a litigant misses deadlines set by the court/tribunal, the result can be an escalation of costs and a reduction in the litigant's chances of winning at trial. A client who is in any doubt as to whether they can give priority to the work they would need to do when going direct to a barrister, would be better going to solicitors who should ensure that all deadlines are met and who will arrange for a barrister to be instructed when needed. Going direct to a barrister will save money if a client can meet deadlines, but, if a client is liable to miss deadlines, going direct to a barrister might work out, in the end because of costs penalties, more expensive than going to solicitors.

4. At the start of litigation a proof of evidence will need to be written down. This is a chronological written account of everything the client can remember which is relevant to the case. Barristers do not write proofs of evidence from scratch but rather finalise ("settle") them by clarifying anything which is not clearly expressed and ensuring that all necessary detail (times, places, names of people, etc.) are stated if known to the client (or other witness). So someone going direct to a barrister would need to write down their proof of evidence as a Word document. Sometimes people find this difficult to do. Even people who normally have no difficulty in writing clearly and at length sometimes find that because they are personally involved, and have gone over the details in their mind many times, they find it hard work to step back and write down clearly what has happened in a way which does not assume knowledge on the part of the reader, and they keep putting it off. If this applies one solution is to go to solicitors. A solicitor will interview the client and write the proof of evidence from what the client tells them.

5. One key reason why engaging a barrister direct in litigation is less expensive than engaging both solicitors and a barrister, is that if you are engaging a barrister direct, you will be doing the co-ordination work that otherwise you would have paid solicitors to do. If you are not an individual but a small organisation the head of which takes a "hands on" approach then this may still make sense, but for larger organisations (which are, however, not large enough to have their own internal solicitors' department) if doing it in-house actually means paying overtime (or diverting an existing employee from profitable work) so that there is a monetary cost - then it may make sense to engage a firm of solicitors, or at least to get a quote and compare relative costs.

6. A client considering bringing a claim together with other people who they do not normally work closely with, will find that there are advantages in everyone engaging a solicitor who, in turn, will engage a barrister to carry out the barrister work. This is because a group of people who do not normally work closely together may be concerned that if they leave it to one of their number to, for example, ensure that documents are delivered to the court/tribunal on time, their claim could be barred by someone else's mistake or lack of diligence, so they may prefer to jointly engage a solicitor who will ensure that everything is done on time. A solicitor can also handle money and receive (and chase) everyone's contribution to fees. In addition a solicitor, who will be handling all correspondence, will be alive to possible conflicts of interest as they arise. People who bring a claim together will have a common interest in the claim succeeding but sometimes conflicts of interest may arise where, despite the common interest, there is some development, and some decision to be made, where the interests conflict. This may be a major conflict or it might be a minor conflict. If it is a minor conflict the parties can still continue to be represented by the same lawyers (and continue to share costs) providing everyone gives their informed consent. A solicitor managing the case and dealing with the day to day correspondence will be able to recognise when a conflict arises, or may be about to arise, and discuss with their clients how they wish to proceed.

Of course many claims are brought by people who already work closely together: a couple who are joint owners of a house may bring a claim against a neighbour, partners in a business may jointly sue a supplier, etc. In such cases they have already decided to live together and have the benefits and burdens of property ownership together, or to undertake the risks and profits of a business together, before any litigation was in prospect, and in this case there is normally no need for a solicitor as well as a barrister. It is where people who do not normally have a "common purse" are brought together only because of litigation that it is often advisable to engage a solicitor, to manage the conduct of the litigation.

7. Most civil claims are "privately" funded in that the client themselves pays the fees (and claims back the fees on winning where this is possible). However if the client cannot afford to pay, there are schemes under which a third party may be prepared to fund certain types of the litigation. The third party may be the Legal Aid Agency or a Trade Union or professional association, a charity, or an insurance company. Some litigation funding comes with no strings attached but in other cases you may have to pay a contribution. In some cases the funding is more like a loan in that if you are successful in the litigation the funder has first call on the property you recover or preserve to repay their outlay (though the funder may take some of the risk of the case not succeeding). Where litigation is funded by a third party funder, the third party funder will normally either insist, or at least strongly prefer, solicitors to be engaged as well as a barrister, just as two people (who do not normally work together) bringing a claim together will normally prefer have a solicitor to handle all correspondence (see point 6 above). The solicitor's duty is to act in the best interests of the client but, as a condition of funding the claim, the client may have to agree to the third-party funder's terms which may have certain stipulations as to how much can be spent without specific approval. Also the third party funder has an interest in procedural decisions which can affect costs, and the third party funder relies on the solicitor to keep it up to date with costs incurred and with any developments which may affect future costs or affect the likelihood of ultimate success. The greater the litigation risk taken by the third-party funder the greater the risk of a dispute between the litigation funder and the client - for example about whether to accept any offer made, or whether further investigations should be paid for - but for those who cannot afford to fund litigation themselves, third party funding - where it is available - may be the only option.

8. For certain types of case - particularly personal injury - solicitors are themselves sometimes willing to offer Conditional Fee Agreements (i.e. "no win no fee" agreements). The solicitors themselves are in effect, to some extent, the "third party funder". Obviously in such cases a solicitor is engaged. The solicitors will, in turn, engage a barrister to do the barrister work which the case requires. CFAs are not normally available if the client engages a barrister direct. The reason for this is that when a barrister is engaged direct, the barrister carries out a series of individual pieces of work as the case proceeds and much administrative work is done by the client themselves with the client only asking the barrister for advice about this administrative work as and when necessary. Much depends on how efficient the client is - e.g. in ensuring deadlines are met - so it is difficult for a barrister to agree to accept the risk of not being paid when it is not only the strength of the case itself (which the barrister can assess) but also the efficiency of the client, which will affect the outcome. So if there is to be a conditional fee agreement this means that in practice solicitors will need to be engaged to manage the litigation and ensure all deadlines are met. 

9. Barristers do not investigate or collect evidence but rely on the client to provide information and evidence. When a client first goes to see a barrister directly to explain the situation they require advice about, the barrister (even if not yet able to give definitive advice on the ultimate question) will invariably be able to advise in what areas further evidence is needed such that the client will be able to look for further evidence, whether that evidence is documents, photographs or witnesses who may have knowledge of relevant facts. In civil cases (as distinct from criminal cases) there are relatively few technical rules about what evidence is admissible - generally speaking anything which is probative - which sheds light on the matters in dispute or likely to be in dispute - is admissible. And most people, even though not lawyers, have a feel for what evidence sheds light on disputed facts even if they might over-estimate or under-estimate exactly how persuasive it is. But there are some types of case where it is difficult for non-lawyers to recognise what evidence is relevant and, if there is a lot to be gone thorough, it is, in practice, necessary to engage solicitors to gather the evidence, as explained below.
           
  • Most traditional areas of civil law, such as property law and contract law, involve questions of what a party's legal rights and obligations are and whether each party has had its rights infringed or has failed to meet its obligations. But some areas of law which have developed more recently place great importance on how decisions are made - i.e. the process of coming to a decision. For example an employer considering dismissing an employee must meet certain standards of fairness in the way they make their decision or they may lay themselves open to a claim for unfair dismissal. Because of this, an employer who has an ulterior motive for seeking to get rid of an employee may seek to cover their tracks by following an apparently fair procedure but manipulating it to achieve a predetermined outcome. Whereas in property and contract cases a barrister can ask a client to write down a chronological account of everything relevant they remember and then ask the client questions in a conference, in an unfair dismissal case it is not so simple because the client, working for the former employer day after day, will have an enormous amount of information most of which is insignificant but the significant parts of which will not be easy for the employee themselves to recognise. In such cases it requires a solicitor with experience of employment cases, and of the way organisations behave, to interview the client in depth, over many hours in total, with all available letters and emails to hand, to identify relevant evidence - it can be very much a case of I don't know what I am looking for until I find it - and then instruct a barrister to consider the evidence and give an Opinion. 
  • For some types of case an enormous amount of documentation needs to be searched. For example a claim that an enterprise dominating a market is abusing its position may involve the analysis of a large amount of material about individual actions over a period of years. It is not possible to give a precise cut-off point where the number of documents would mean that solicitors need to be engaged because documents vary - searching through closely typed letters may take longer than looking at invoices or bank statements - but certainly any case where more than 10,000 pages need to be searched through is likely to require solicitors.   

Transactions

10. A client who wishes to execute a transaction for which legal formalities are either required or are good practice could go to either a barrister or a solicitor (you don't generally need both). Examples of transactions include buying a house or other land, making a Will, creating a Trust, creating a company, or entering into a commercial contract. In general a solicitor would be the natural choice where the client knows in detail what they want to do but just needs the legal formalities to be dealt with (this would be the case for buying a house or other land and may be the case when making a Will or creating a company). A barrister would generally be a better choice if it is not only the formalities which need to be dealt with but the client is also seeking advice about the best way of arranging matters to achieve their objectives. This is often the case with commercial contracts and Trusts, and might apply to some Wills and some company structures.

Creditors

11. A creditor owed money in circumstances where there is unlikely to be any dispute about the fact that it is owed is unlikely to need a barrister. An example would be if goods or services have been provided for a clearly agreed price and no complaint about the goods or services has been made. If it is a relatively small amount of money and the debtor needs time to pay the creditor may well feel that they can probably come to an arrangement with the debtor without needing to go to a solicitor but if it is a larger amount they may wish to engage a solicitor. Where appropriate the creditor's solicitor can negotiate a payment plan with the debtor and ensure that any agreement is properly documented and that, if possible and appropriate, security is obtained. If a debtor owns a house or other land it is possible for the solicitor to apply to the Court for a charging order but often a debtor will voluntarily agree to a charge (like a mortgage) being placed on their land as part of an agreement to repay the debt by affordable installments.

Debtors 

12. If a debtor thinks they owe money, the first question is whether the money is really owing in law. If the debt is for goods and services or they have received a loan, it might be that some of the laws designed to protect consumers may be relevant. There are, for example, regulations about sales in peoples' houses, or over the internet or by phone, and many loan agreements are regulated. There may also be a question of whether the goods or services provided were as agreed and whether they were they provided on time. A barrister would be consulted about matters such as these. Again if something is owed for goods or services but the precise amount was never agreed and the amount charged seems excessive, a barrister may be asked to advise. But if it is simply the case that the debt is definitely owed but the debtor can't afford to pay - at least not all at once - then depending how much it is many debtors go to the Citizens Advice Bureau who can offer advice about organising finances, negotiating with creditors, and prioritising repayments. If negotiations with creditors fail and a debtor is on the receiving end of threats of legal enforcement action then they would normally to consult a solicitor.


Judgment Debtors

13. A judgment debtor who has been ordered by a court or tribunal to pay a sum of money to their opponent might be able to appeal. A barrister can advise on whether there are grounds for an appeal. If there are no grounds to appeal or if routes of appeal have already been exhausted, and the debtor can't afford to pay the amount of the judgment, they will often try to negotiate with the other party (or with their solicitor if the other party has engaged solicitors) for time to pay. The Citizens Advice Bureau can also offer advice about organising finances, negotiating with creditors, and prioritising repayments. If negotiations fail and the debtor is on the receiving end of threats of legal enforcement action then they will normally consult a solicitor. If the court/tribunal judgment includes costs to be assessed (e.g. the order might say "the Defendant shall pay the Claimant £40,000 plus the Claimant's costs of the case to be subject to detailed assessment if not agreed") then the debtor will want to consult a solicitor immediately even if they can afford to pay because the solicitor will be able to advise what offers should be made for costs and, if the costs offer is not accepted, a solicitor will be needed to handle the assessment process whereby the court/tribunal eventually decides how much should be paid by way of costs.

Judgment Creditors

14. Most people will pay up when a court/tribunal judgment is obtained against them. If this does not happen and it is a relatively small amount of money and the debtor needs time to pay, the judgment creditor may feel that they can probably come to an arrangement with the debtor without needing to go to a solicitor, but if it is a larger amount usually a solicitor is engaged. Where appropriate the solicitor can negotiate a payment plan with the debtor and ensure that any agreement is properly documented and that, if possible and appropriate, security is obtained. If a debtor owns a house or other land it is possible for the solicitor to apply to the Court for a charging order but often a debtor will voluntarily agree to a charge (like a mortgage) being placed on their land as part of an agreement to repay the debt by affordable installments. A judgment creditor who has a court/tribunal judgment which includes costs to be assessed (e.g. which says "the Defendant shall pay the Claimant £40,000 plus the Claimant's costs of the case to be subject to detailed assessment if not agreed") will want to consult a solicitor immediately because even if the judgment debtor immediately pays any fixed amount stated in the order (e.g. the £40,000 in the above example) a solicitor is still needed to handle the process of assessment of costs - i.e. to negotiate costs or, failing agreement, to start the process whereby the court/tribunal eventually decides how much should be paid by way of costs.
      
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