Barristers, otherwise known as "counsel" represent clients in court, cross-examining witnesses, and arguing the client's case before a judge or, in some cases, a judge and jury.
Barristers also draft "pleadings". Pleadings, sometimes known as "statements of case", set out what each party alleges to be the key facts which entitle it to the legal "relief" (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 trial on any matter not properly pleaded, so invariably the barrister, who will be representing the client at the trial, drafts the pleadings so as to ensure that all the legal arguments, which they consider ought to be raised at trial to further the client's case, can be.
Barristers, because of their experience of arguing cases in courts and tribunals, are skilled in providing legal advice, that is advice on what the law is, how it applies to the client's circumstances, and 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 court or tribunal, or what the chances are of a client's defence being successful if someone else is bringing a claim against them. A barrister's advice can be sought early on before court or tribunal 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 court/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") and staff - clerks - who keep each barrister's diary and agree fees.
When to instruct a Barrister
There are many different circumstances in which you will 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 an initial consultation 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 a consumer sale of goods of modest value to a very substantial commercial dispute involving millions of pounds. Another possibility is that you have a complaint concerning how you have been treated by a public authority; 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. This is one of the most effective ways of all in which to use a Barrister and is very cost effective also. 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 it may be 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 courts and tribunals. In the case of some types of claim, particularly employment disputes and challenges to the decisions of public bodies, the statutory time limit may be only be a few weeks. 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 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 you should ask a Barrister to advise how long you have got before you have to consider making a legal claim.
Civil disputes also include disputes in the wider family such as disputes between adult brothers/sisters about matters such as inheritance and property rights. For matrimonial disputes, and questions about under age children (whether their parents are married or not) see below.
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 will 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 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 Court 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. It is unlikely that you will want a Barrister for quite minor matters where the worst you face is a modest financial penalty, and where the alleged offence does not involve any imputation on your character which might have future repercussions in terms of, for example, your ability to get a job. 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.
Further information about engaging a barrister
You can find more information about what barristers do, and how to find a barrister, on the Bar Council portal.
This page was lasted updated in December 2019. Disclaimer