Barristers, otherwise known as "counsel" represent clients in court and in other tribunals, cross-examining witnesses, and arguing the client's case before a judge or, in some cases, a judge and jury, or a panel consisting of a judge and members.
Barristers also draft "pleadings" in civil cases. Pleadings, sometimes known as "statements of case", set out what each party alleges to be the key facts which entitle it to the legal result it seeks - e.g. payment of money, a declaration of who owns property, or an injunction to prevent unlawful behaviour such as trespass. There are rules about what needs to be pleaded and at what level of detail, and generally a party cannot rely at the final hearing (trial) on any matter not properly pleaded without special permission, so invariably the barrister, who will be representing the client at the hearing, drafts the pleadings so as to ensure that all the matters which they consider ought to be raised at the hearing to further the client's case, can be.
Barristers, because of their experience of arguing cases in tribunals, are skilled in providing legal advice, that is advice on what the law is, and how it applies to the client's circumstances. In a civil matter advice can include what practical steps the client can take to preserve or assert their rights including advice about what a client's chances of success would be if they were to bring a claim to a tribunal, or what the chances are of a client's defence being successful if someone else brings a claim against them. A barrister's advice can be sought early on before proceedings are contemplated so as to inform the client's approach to resolving the issue which has arisen - perhaps taking a relatively firm approach if the advice is that, should the matter come to a tribunal, the client is very likely to be successful, or taking a more flexible approach if the advice is to the contrary.
Advice can be given "in conference" - i.e. face to face at a meeting - or in writing. Often advice is given both in writing and in conference: for example a written Opinion setting out the law and the various options which the client has, with the pros and cons of each, may be given first, followed by a conference to talk through the various options before a crucial decision is made. If the case involves land invariably the first conference will be at, or somewhere near to, the site, so that the barrister can see the layout of the land concerned (as just looking at photographs is never quite the same).
Although barristers are all independent of one another, in order to keep overheads low barristers typically share offices (known as "chambers").
When to engage a Barrister
There are many different circumstances in which you may wish to consult a Barrister, but these can be reduced to three broad categories: (a) civil disputes (b) matrimonial disputes (c) criminal proceedings. We look briefly at each in turn (see below). Most Barristers specialise to some degree - for example I practice in civil disputes, particularly disputes over land. If the matter is one where a Barrister is to be consulted then the next question is whether you should consult your chosen barrister straight away or whether you should wait until matters are further advanced. The only safe answer to this question, if you are in any doubt, is to contact a barrister for initial advice straight away. There may, or may not, be some time limit which you need to meet but it is only after you have put the matter before a barrister that they will be able to advise you about any time limit which may apply.
The typical set of circumstances in which you will want to consult a Barrister is where you have a civil dispute. This can range from a boundary dispute of a few feet to a dispute over rights of way or restrictive covenants affecting a large area of land, and from an argument over the purchase of a car to a very substantial commercial dispute involving tens of millions of pounds. Another possibility is that you have a complaint concerning how you have been treated by a public body e.g. a council or central government. In an ideal world we would all settle our differences fairly and reasonably, doing the least possible harm to each other’s interests consistent with our own rights and expectations. Unfortunately we do not live in an ideal world. If you are in doubt as to your rights and obligations then it is a good idea to consult a Barrister. One of the best uses that can be made of a Barrister is to seek advice at an early stage in a dispute, in order to obtain a neutral view of the merits (i.e. the strengths and weaknesses) of your position, the nature of your rights and obligations and how best to proceed to resolve the dispute. An early consultation with a Barrister early on may save considerable grief and expense later. It can sometimes be the legal equivalent of a stitch in time saving nine. For example, you may have a dispute over a contract, it might be a building contract, the purchase of a car or an employment dispute. Or you may have a dispute about rights of way or restrictive covenants. You can discuss with your Barrister the various options that you have and the possible consequences. A Barrister can draft a letter for you to send or simply advise you as to how to proceed. Bear in mind that there are time limits for bringing claims in civil courts and other civil tribunals and in a case where it is necessary to serve a formal notice, or make an application to the Land Registry, or take some other action, there may be time limits for that also. In some cases the statutory time limit may be only a week or two. Even if the statutory time limit is longer it may not be wise to wait because if you want the court to make a discretionary order that a party must do something or not do something, for example cease building work (rather than the court simply awarding compensation) you are more likely to be granted the order if you bring the matter before the court before too much building work has already been done, so, even if you hope that matters can be resolved without starting litigation, or other formal action, you should ask a Barrister to advise how long you have realistically got before you have to consider formal steps.
You may wish to consult a barrister if your marriage breaks down or any other serious issue arises in respect of family relationships or children. Included here would also be care proceedings or anything else concerning family rights and responsibilities which is of concern to you. This does not necessarily mean that a Court will be the best place in which to resolve such issues. There is increasing use of alternative means such as mediation. Parties to family disputes above all are encouraged to settle their differences as amicably as may be possible in order to save costs and emotional harm to themselves, their former partners and their children. But if Court proceedings are necessary then your barrister can represent you in Court.
A society creates all manner of rules for its members. When those rules are particularly important for the good government of a community, they have to be enforced. Societies enforce rules by creating penalties for their breach. This is the essence of criminal law; a rule made by society which members of that society respect or else face a penalty. Criminal offences range from very modest offences which are not truly criminal in the popular sense of the word (the parking ticket is the best example), to crimes of the utmost severity, such as murder. Typically, the more modest the offence, the less likely it is that any particular state of mind is required at the material time. It is enough if the facts comprising the offence are proved by the prosecution. By contrast, the more serious an offence is, the more likely it is that it will have to be proved that what was done was intended. In all criminal proceedings it is for the prosecutor to prove the case beyond a reasonable doubt or, in other words, so that the magistrate or jury is sure of the guilt of the defendant. Whether you need a Barrister or not for a criminal matter may depend on the seriousness of the case. You may not need a Barrister if you have received a fixed penalty notice for a quite minor matter where the worst you face is a modest financial penalty, and where the alleged offence does not involve any imputation on your character or competence which might have future repercussions in terms of, for example, your ability to get a job or licence. But if the possible penalty is higher and/or there is a risk of losing some kind of licence, you should engage a barrister. If in doubt engage a Barrister. There is often rather more to a criminal offence than you might expect; for example theft is (a) the dishonest appropriation of (b) property (c) belonging to another with (d) the intention of (e) permanently depriving the other of it. There are five quite separate elements to be established before the crime of theft is made out. A Barrister will help you to understand whether you have committed an offence or not, whether you have a defence and how to deal with the matter generally. A Barrister can assist you in Court, whether to contest the charge in a trial or to make a plea in mitigation of sentence on your behalf.
This page was lasted updated in October 2023. Disclaimer