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 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. This does not mean that solicitors are redundant in all civil cases - far from it - but it means that a solicitor is required only where the case requires some specific solicitor service, and not as a matter of course in every case. 

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, and many family-law cases need a solicitor).

When a solicitor might be needed as well as a barrister 

IT skills

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 access 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). 

Literacy

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.  

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. 

Available Time

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. 

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.


Those based outside the UK

A person who is a party to court proceedings in England generally has to give an address within the United Kingdom at which formal documents relating to the proceedings can be sent by the other parties and by the court. This is known as their address for service of documents or service address. But if a party engages a solicitor in the UK it will be the solicitor's address (rather than their own address) which is their service address because the solicitor will be dealing with all litigation correspondence for them. If you are based outside the UK and you do not have a solicitor, you would, if involved in court proceedings, need to make arrangements with someone in the UK to act as your address for service and scan in and email to you any documents received. Also, although some courts allow some documents to be filed online, many still require at least some documents to be provided in paper form and you may have to serve documents in paper form on other parties. Although you could serve documents on other parties by sending them by post from overseas, the delay might mean that deadlines are missed so unless you can make arrangements with someone in the UK who can (often at short notice) print out and send documents in the post for you, it may be necessary to engage a solicitor in the UK. Although barristers draft formal documents, a barrister is not allowed to file or serve them for you. 

If you are a party to tribunal proceedings in England then usually you can give an address for service outside the UK but this does depend on the tribunal concerned.      

Multiple claimants or multiple claims

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. 

You do not normally need a solicitor just because there is more than one defendant in the same court claim, but sometimes there are two separate but linked court claims or potential claims against different defendants which need to be co-ordinated by a solicitor. For example A has a claim against B and engages solicitors C to pursue the claim against B. Because of the negligence of C, A's claim against B has become more difficult - not impossible but more difficult. A therefore needs to find lawyers to (1) take over his claim against B and (2) pursue C for the loss caused by their negligence (i.e. the difference between what A eventually recovers from B and what A would have recovered from B if C had not handled the original claim negligently). In this case it is necessary to engage solicitors specialising in professional negligence claims to manage and co-ordinate the two claims because they have an ongoing and varying influence on each other. For example a decision might be taken not to proceed too far in a claim against C until the claim against B is concluded and the loss is known, but it is important not to delay a formal claim against C too long and miss the limitation date. Avoiding missing the limitation date for a claim against C is not always as simple as it might appear because of technical rules about when the cause of action is deemed to have arisen, which affects when the limitation date is, and the interaction between these technical rules and the facts as they emerge when pursuing B.     


When extensive correspondence is necessary

Extensive pre-action correspondence about a legal dispute is not always a good thing. If there is a genuine desire by both parties for a compromise solution then a one-day mediation conducted by a professional mediator is generally more likely to be successful than prolonged correspondence which can actually exacerbate differences. And where mediation is inappropriate (e.g. where an urgent injunction is needed because one party has taken precipitate action, or where the issue is clear cut and compromise is unlikely to be acceptable to at least one of the parties) the choice is between putting up with the situation or commencing legal proceedings (after an appropriate letter before action).

There are some situations, however, where a party may choose the prolonged correspondence route. Where two neighbours have different understandings of their respective rights, for example about the width of a right of way, it may be that most of the time there is no practical problem but occasionally circumstances conspire to cause conflict where a need to use of the full width happens to coincide with a temporary obstruction. Sometimes there is intermittent correspondence over many years as each side feels the need to assert its claimed legal rights (so that they are not lost by default) in response to some incident but neither party feels that the occasional temporary problem justifies the risk of starting court proceedings to have the underlying dispute finally resolved. If such prolonged correspondence is the chosen strategy - not always a good idea and often surprisingly expensive - but if it is the client's chosen strategy, then a barrister will normally recommend that a solicitor be engaged to conduct the correspondence.

The commencement of litigation marks the point at which it is decided that further attempts to resolve a problem by discussion are unlikely to be successful and the time has come to invoke the powers of the court/tribunal to impose a compulsory solution according to the law. This means that in the usual case there is little correspondence between the parties once litigation has commenced. The process of litigation involves the parties sending formal documents drafted by barristers (such as pleadings) to each other at various stages, in preparation for the eventual trial, as directed by the court/tribunal, but apart from such formal documents there is little correspondence as such. Barristers specialise in giving legal advice, drafting formal documents, and representing clients in court/tribunal - the three main areas required for litigation - not in correspondence. Often, during the litigation process, one or two letters need to be sent, such as letters making formal settlement offers, and a barrister can draft such letters for the client to sign and send off, but if extensive correspondence is needed then solicitors will need to be engaged to conduct that correspondence. Usually extensive correspondence is not required during litigation and so solicitors are not needed but, as explained below, there may be some situations where there is a need for solicitors to deal with correspondence during litigation.


Where the litigation is a relatively small part of a wider strategy

There may be some cases where litigation is a relatively small part of a wider strategy and winning the litigation is not the main objective. For example a retailer which suffers reputational damage and loss of sales because, contrary to its contract with an overseas supplier, the supplier is using harsh employment practices, may be able to make a claim against the supplier (as well as not renewing its contract with the supplier when it comes to an end) but the result of winning such as case may, however, be further reputational damage in that the retailer will be seen to be profiting from the situation and not helping the overseas workers who lose their jobs (and will presumably then be worse off compared to their previous employment even taking account of the harsh practices). The retailer's preferred solution to the problem may be to persuade the supplier to improve its employment practices and agree to a further supply contract which has some clauses to make sure the supplier does immediately cease the objectionable employment practices. But that depends on the supplier agreeing. The purpose of the litigation may be simply to bring the supplier to the negotiating table. In such cases, where the way in which the litigation is conducted is heavily influenced by wider considerations, it is important to engage solicitors who will correspond with the other party - and usually a lot of correspondence is necessary - taking account of the wider objectives.

Boundary disputes and other cases where there is a single joint expert

Another circumstance in which significant correspondence will be needed, and where, therefore solicitors will be required, is where a single joint expert will give evidence in the case. There are some types of case where the opinion of an expert is required, where some issue in the case hinges on some matter which is outside the area of general knowledge and within the area of a recognised expert discipline. For example in a personal injury case the expect evidence of a surgeon will be needed on the question of the exact nature of someone's medical condition and the prognosis (and the cause if this is in dispute) because this affects the amount of damages they may be awarded and is a matter outside of general knowledge. In a building dispute a building surveyor may be needed to assess the defects in building work and the cost of remedial work. In a boundary dispute a land surveyor may be needed to survey land and provide an accurate plan since very accurate measurements - and boundary disputes hinge of small areas of land - are a matter which calls for an expert. Traditionally where expert evidence is needed, each side engages their own expert, each expert produces a report, the experts then meet to see whether or not they can narrow their differences, and (unless complete agreement is reached) both experts then give evidence at the trial and are cross-examined by the other side's barrister.

That is the traditional way and still the way in cases where substantial amounts of money, or other matters of importance, are in dispute. But, particularly over the last few decades, there has been been concern over the cost of legal proceedings particularly in cases where the amount in dispute may be less than the cost of legal proceedings. It is one thing to pay £50,000 in legal costs and be at risk of having to pay the other side's legal costs of about the same amount when the amount in dispute is £500,000, but if the amount in dispute is, say, £15,000 may people with perfectly respectable legal cases will be deterred from claiming or defending their rights if each side's legal costs are £50,000. Even with a small risk of losing, the possibility of having to pay £100,000 in costs is a deterrent to seeking justice. Generally the legal system has sought to ameliorate this problem, for relatively low value claims, by what might be called "short cuts" in the normal legal procedure. The idea is that for lower value claims it is better to bring down legal costs and have somewhat rougher justice than to have perfect justice which nobody can afford. As part of this general approach there is a special Fast Track procedure, designed for claims less than £25,000, and for relatively minor land disputes such as boundary disputes, under which cases are heard by more junior judges, trials are limited to one day, and, if expert evidence is needed it is given by a single joint expert. A single joint expert is an expert, such as a surveyor or surgeon, who is instructed by both sides simultaneously. Having a single expert not only saves money in the obvious way that there is one expert to pay rather than two, but there are further savings because there is no need for experts to meet - there is only one expert - and because there is only one view - the view of the single expert -  usually it is not necessary for the expert to give evidence at trial and his report is sufficient. This saves a considerable amount of money but it does mean that in many cases the view of the expert really decides the case. Ultimately the judge decides the case but if it hinges on expert surveyor evidence, for example, there is only one expert view - there is no other expert to give a different view, the judge cannot act on his own opinion if it is an area which is outside general knowledge and calls for an expert - and so in reality the expert's view, unless it is clearly illogical or untenable, normally determines the outcome. Because the view of a single joint expert is so crucial, each side wishes to take special care when drafting "instructions" to send to the expert. Ideally the parties should agree the wording of joint instructions but agreeing joint instructions can take a lot of correspondence and often the parties are ultimately unable to agree the wording. Where the parties cannot agree the wording each party can send their own instructions but this can lead to a situation where one party, having sent its own instruction letter, then writes a further letter criticising the instructions of the other side, in the hope of swaying the expert to focus on one issue rather than another, and the other side then feels that they need to respond to that letter. So, one way or another, considerable correspondence is nearly always needed when there is a single joint expert and therefore solicitors need to be engaged. This is particularly the case in boundary disputes where one side may be trying to get the land surveyor expert to venture on to what is normally considered legal territory - interpreting deeds, the hedge and ditch rule, the rules of adverse possession etc. - perhaps less so in building dispute cases where the proper scope of a building surveyor's expertise - what is wrong and how much will it cost to fix - is less open to dispute. 

Thus there is the paradoxical result that direct access to a barrister, with the cost savings that normally involves, may not be practical in Fast Track cases where an expert is needed, even though the whole intention behind the use of single joint expert/Fast Track system was to save legal costs! Of course many Fast Track cases do not require any expert evidence but where they do, and use of a single joint expert is inevitably directed by the court, solicitors will usually need to be engaged. 

Other circumstances where significant correspondence is required

Often, during the litigation process, one or two letters need to be sent, such as letters making formal settlement offers, and a barrister can draft such letters for the client to sign and send off, but if extensive correspondence is needed then solicitors will need to be engaged to conduct that correspondence. When litigation is underway it is not normal for the parties to engage in extensive correspondence arguing about who has the stronger case and who is going to win. Each side has its own view of the strength of its case and which side is right will be decided by the court/tribunal at the trial, and usually the view is taken by lawyers that there is no point in incurring further costs writing letters arguing about it. If both sides demonstrate a real desire to settle then usually the best course is to have a formal one-day mediation conducted by a professional mediator, but, in the absence of that, writing letters arguing how strong a case you have is unlikely to be a good use of money. However sometimes clients are very keen that their case should continue to be argued in correspondence notwithstanding the extra cost. Usually such correspondence is futile but just occasionally it does finally convince the other party that they are better off accepting an offer made to them rather than proceeding to trial. The likelihood of this happening is not high but neither is it zero and it is ultimately the client's choice whether there will be such correspondence during litigation, but if the client does insist on such correspondence then solicitors will generally be needed to deal with that correspondence.                              


Third party funding   

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 conduct the litigation and handle all correspondence (see See Multiple Claimants or Multiple Claims 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.

Housing disputes if you are the tenant

If you have a legal problem with a landlord you will often qualify for Legal Aid and if you use Legal Aid you will need a solicitor (see above).

Asylum claims

If you are seeking asylum or seeking accommodation you will often qualify for Legal Aid and if you use Legal Aid you will need a solicitor (see above).  

Personal injury claims

Personal injury claimants have a privileged position in the Civil Procedure Rules which means that in normal circumstances they do not have to pay the defendant's costs if they lose. This has created a "market" for solicitors 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. 

Employment claims

Barristers do not investigate or collect evidence but rely on the client to provide information and evidence. 
A client will be asked to write down their recollections. Some of what a client writes down may not be relevant but within reason this is not a problem because it does not take too much extra time for the client to write down, nor too much time for the barrister to read. However there are some types of cases where it truly would be virtually impossible - or at least very time consuming - for the client to write down all their recollections. This is typically the case in employment claims where it is not feasible for the client to write down every single thing which has happened - day in and day out - over the years that they have been employed. If it is not feasible to write down everything, this may not be a problem if the client can recognise what is relevant and what is not, but this is often particularly difficult to do in employment claims. 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 and, aware of this, some unscrupulous employers will attempt to disguise their real intentions and motivations. 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, out of the mass of information tell-tale signs that all was not as it appeared - 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 relevant evidence identified and give an Opinion.

Where there is a very large amount of historical documentation 

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.

Conveyancing  

Conveyancing is the process of buying or selling land (with or without a building on it) and involves carrying out searches to make sure that the buyer will get good legal title to the property, and handling money often in circumstances where there is a chain of transactions occurring simultaneously. A client who wishes to buy or sell property would always go to a solicitor (or licensed conveyancer) rather than to a barrister. Barristers do carry out what are called "reserved instrument activities" and a barrister might be engaged by a solicitor to draft a complex lease or property transfer but a solicitor would always be required for the other aspects of the conveyancing process unless there is no "transaction" as such and it is purely matter of preparing a document to register a pre-existing right such as a right established by long usage or long occupation. In the case of registering an existing right, generally the client would go to a solicitor if there is not expected to be any dispute or objection; the client would normally go direct to a barrister if there is a dispute or there is expected to be a dispute as in this case the application to register the right would normally trigger a referral to the First-tier Tribunal.

Other Transactions

A client who wishes to execute a transaction for which legal formalities are either required or are good practice would normally go to a solicitor. Examples of transactions include making a Will, creating a Trust, creating a company, or entering into a commercial contract. In many cases the client knows in detail what they want to do but just needs the legal formalities to be dealt with and in this case the solicitor would not generally need to consult a barrister (this is often the case when making a Will or creating a company) but in other cases 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, and in this case the solicitor, having established the background circumstances and the client's overall objectives, will often engage a specialist barrister to draft the document.

Creditors

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 

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

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

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.
      
This page was lasted updated in July 2017          Disclaimer