Six months ago it became possible for a member of the public to instruct a barrister directly, but for most construction disputes this course of action may not suit
You may not have realised it but 6 July last year hosted “a historic and exciting development”. The significance was that from that day a member of the public could instruct a barrister direct. Until then barristers could only get involved in disputes if a solicitor or professionally qualified person using the direct professional access rights was instructed to ask the barrister for advice.
Anthony Speaight QC, chairman of the bar council’s access to the bar committee, said: “Until now a client who wanted advice from a barrister not only had to pay the barrister but also had to pay a solicitor for passing on the instructions. Now unnecessary duplication of legal fees can be cut.”
He went on to say: “Public access will suit businesses and individuals who do not need the administrative services of a law firm.” This should not be seen as barristers setting up in competition with solicitors as solicitors are the only profession designated as “litigators” under the Courts and Legal Services Act.
Barristers, therefore, are not permitted on pain of prosecution to “litigate”. This means that they cannot issue and serve claim forms (sue somebody on a client’s behalf) or conduct the correspondence between the parties during the litigation process. Further, as the bars rules stand at present, a barrister cannot “investigate” or take witness statements from witnesses on behalf of a new client.
So what is the point of the bar council giving you the right to come direct to see a barrister, if an act of parliament prohibits barristers from doing the one thing you want them to do on your behalf?
First, appearing in court in a wig and gown is only one of a number of functions that barristers perform. Barristers are often asked for advice on rights and obligations under contracts and statutes. We are frequently asked to draft contracts, bonds and other contractual documentation and we are often asked to provide advocacy services in arbitration, adjudication or mediations with or without solicitors.
Second, before deciding to come for tea and biscuits in chambers you need to think about the differences between the professions. Solicitors are usually organised into partnerships and each partner will have associate solicitors, solicitors, trainees, assistants, legal secretaries and paralegals working under them. If a particular piece of work needs four partners and seven solicitors then there are many firms that could provide those resources at the drop of a hat all under the management of one partner.
Barristers on the other hand, are all self-employed. We may work from a common chambers but we are not in partnership or even in a limited liability partnership with the other members of chambers. We do not have the vast administrative machine that solicitors have. If a barrister is instructed to do some work it will be largely the product of the barrister’s solo effort. Yes barristers have “clerks” but they should not be confused with the office clerk.
If a barrister is satisfied that, given proper guidance, the lay client could carry out any investigating themselves, along with any administrative tasks, the barrister might be able to assist. If the matter involves traditional work for a barrister, such as advice, or drafting contracts, or advocacy services outside the aegis of the courts, such as in adjudication, the bar may well be able to offer a cheaper service.
The truth is that if you come to see a barrister on a matter that needs several legally qualified people to investigate, or needs extensive witness evidence to be taken, or requires extensive and specialist “litigation” to be conducted, you will probably find yourself being advised to go to see a solicitor. This applies to most construction litigation, which is invariably complicated. In which case it is likely to be cost effective to instruct barristers in the normal way, via a solicitor who can carry out the investigation and obtain the evidence before coming to see the barrister. The acid test is the client’s view, but you can only form a view when you know you have a choice.
Peter Collie is a barrister, adjudicator and mediator, at No 5 Chambers in Birmingham, firstname.lastname@example.org