Direct access: instructing a barrister directly

What is direct access?

This means it is possible for a landlord, tenant, letting agent, homeowner, property manager or other property professional to instruct a barrister without needing a solicitor on board.

Historically barristers have been unable to accept instructions directly from members of the public. If an individual wished to engage the services of a barrister, they could only do so through a solicitor as an intermediary. In the main, the same holds true today.

However, the rules of engagement were relaxed somewhat in recent years by the Bar Standards Board to allow barristers to be instructed directly by members of the public, provided:

  1. the barrister has attended an approved Bar Standards Board training course;
  2. the barrister has notified the Records Department at the Bar Council of the intention to undertake such work; and
  3. the barrister has the necessary insurance cover.

In relation to instructing Michael on a direct access basis, all of the three requirements above have been satisfied.

What a direct access barrister can do for you?

  • Represent you in court
  • Draft important legal documents
  • Advise you in writing or orally in conference (this can include advising on next steps and providing assistance where necessary)
  • Represent you at a mediation or arbitration
  • Negotiate on your behalf
  • Draft case summaries
  • Draft position statements
  • Draft skeleton arguments (including exchanging skeletons with an opponent and/or lodging skeletons with the court)
  • Collate bundles of authorities to assist with your case

The following services are potentially available but depending on the nature of your case and/or the risks associated with the following, it may be that the following activities will be declined by the barrister:

  • Investigating and collecting evidence.

Whilst such a service is somewhat allowed, the barrister must not conduct a case in court if he has previously investigated or collected evidence in the case unless he reasonably believes that the investigation and collection of that evidence is unlikely to be challenged

  • Entering into corresponding with your opponent on your behalf.

The barrister may send letters on his chambers’ letterhead and/or by fax or email. However, the barrister must only conduct correspondence if he is satisfied it is in your best interests to do so and the barrister has adequate systems, experience and resources for managing the correspondence.

Whilst of course the barrister can by all means draft content for you to put into your letters, if it is imperative for you that someone enters into correspondence on your behalf then perhaps instructing a solicitor would be the better option for you.

  • Signing statements of truth on your behalf.

Whilst this activity is permitted in part, it would normally be an activity that the barrister would refrain from doing as this is closely connected with the conduct of litigation. In the majority of cases the barrister would require you to sign your own statements of truth on any given documents.

What a direct access barrister cannot do for you

  • Issue proceedings
  • Acknowledge service of proceedings
  • Provide an address for service
  • File documents at court or serve documents on parties
  • Issue notices of an appeal
  • Lodge full trial bundles
  • Serve any other notice on a party

The above is known as conducting litigation, which is an activity purely reserved for Solicitors.

However, in practice the above should not be particularly onerous on you, and therefore provided that you are sufficiently capable of conducting your own litigation (i.e. capable of doing the above list of items the barrister is not allowed to do) then instructing the barrister directly is an appropriate route for you and can be hugely to your advantage.

Advantages of intructing a barrister directly

  • You have an expert in landlord and tenant litigation at your fingertips

Michael has years of experience in advising solicitors (and other barristers) as to best practice in the world of property litigation. Therefore, you can simply come directly to Michael himself instead of going to an intermediary such as a solicitor or other legal professional

  • Effective strategic advice 

Michael has long understood the importance of playing the right cards at the right time. It is important that you do not take matters into your own hands without first seeking consultation, as timing can play an incredibly important role in achieving your objectives

  • Peace of mind 

Landlords and letting agencies can be content with the knowledge that they have an expert on board and with the safe knowledge that their issue will be resolved with an expert on board

  • No unnecessary duplication of legal fees 

Provided a solicitor would not need to be brought into the process during your matter, there would be no need to incur additional legal fees

  • Competitive rates 

Being self-employed, Michael has the autonomy to offer flexibility with legal costs and he is typically less expensive than the majority of solicitors

  • Total transparency 

Payment will usually be required in advance of any work, therefore there will be no hidden fees or charges at the end of any case

  • No palming off 

As barristers work alone, you will always be dealing with the barrister and not an office junior with less knowledge of your case or the law

  • Access to Justice

Being able to instruct a barrister directly offers landlords and letting agencies affordable easy access to the best legal minds in the country

When might it be appropriate for a solicitor to be bought on board?

The barrister cannot accept direct access instructions if he forms the view that it is either in your best interests or in the interests of justice for you to instruct a solicitor or other professional client. This is a continuing duty which the barrister must keep under review during the course of a case.

This decision is likely to depend both on the complexity of the case and your capability (for example, a well-resourced client, such as a large corporation, may be able to handle very complex litigation. An individual who is not well-resourced may not be able to handle litigation as it becomes more complex).

In making this assessment the barrister is likely to reach one of three views:

  • the level of the case and the likely work involved is within your capabilities and there is no obvious reason why a solicitor should be instructed
  • the case is of such complexity or has reached a stage that it is not in your interests or the interests of justice to instruct a barrister without a solicitor or other professional being involved in the process. Having reached such a view, the barrister can no longer act on a direct access basis. The barrister would however be able to continue to be involved in your case if instructed by a solicitor (or other professional client) and the barrister is able to make recommendations as to which solicitor should be engaged, and
  • the case may well become complex and may involve work which you cannot do, but the barrister does not consider that a solicitor or other professional needs to be instructed yet.

Therefore, if it appears to the barrister at any point during the process that the matter is becoming sufficiently complex or that it is not appropriate for you to be continuing to conduct your own litigation then the barrister will advise you that it would be necessary for a solicitor to be brought on board to act as an intermediary.

Whether or not you are capable of conducting the litigation yourself is dependent upon:

  1. how much work is necessary for you to have to carry out yourself in order to be able to comply with any court directions, or deal appropriately with the matter at hand;
  2. whether you have the necessary resources in place to be able to conduct litigation effectively, or at all;
  3. the legal issues that have arisen so as to warrant the need to instruct an expert in a particular field (i.e. a surveyor, an engineer, electrician etc);
  4. how complex the legal issues have become so as to warrant the need for the involvement of a solicitor to take over the conduct of litigation for you;
  5. whether you are capable of writing your own Witness Statements for example, or whether the assistance of a solicitor would be more appropriate in the circumstances.

PLEASE NOTE – Should at any point the barrister recommend that a solicitor or other professional is brought on board and you consequently fail to take heed of this advice, then the barrister would have to withdraw from your case.

Funding

You will have to arrange your own funding before instructing the barrister.

In order for the barrister to carry out any work in accordance with your instructions, funds will be required in advance. Payment should be made out to Michael Grant and sent by direct bank transfer to 42 Bedford Row’s account. The account details will be communicated to you at the appropriate time.

Should you not have the necessary funds to be able to finance such work, you may wish to explore any alternative funding options such as whether you have any insurance policies that could cover for such legal fees.

There are other alternatives, you may wish to explore should you need to fund rather lengthy and costly cases. Whilst Michael is unable to advise you as to the appropriate option for you to elect, you may wish to explore whether you would be able to obtain legal cost finance through the Bar Council’s own escrow account. Feel free to visit the Bar Council website page about BARCO at http://www.barcouncil.org.uk/supporting-the-bar/barco/ for more information.

You may under the circumstances wish to see if you are eligible for public funding, however Michael will be unable to carry out any direct public access work for you in this instance. Should you be eligible for public funding and as a result you wish to obtain such public funding then you must instruct a solicitor in the first instance.