Licensed Access Guidance - Handbook for Clients
Introduction
1.1 This handbook, which is provided to
existing or potential licensed access clients, comprises the
following sections:
(1) Guidance for those seeking recognition under the licensed
access scheme. The purpose of this section is to set out, in
general terms, the principles which govern the grant of licences to
use the licensed access scheme and the nature of such
licences.
(2) A check list for licensed access clients who are proposing
to instruct a barrister under the terms of their licence.
(3) Guidance notes for licensed access clients. This section is
designed to be of assistance to clients who are proposing to
instruct a barrister under the terms of their licence. It covers
matters such as the type of cases in which it is appropriate to
instruct a barrister, choice of barrister, the manner in which a
barrister should be instructed, the steps following the initial
instruction and billing.
1.2 There are also attached to this
handbook a number of appendices, as follows:
(1) An application form for those seeking recognition as
licensed access clients.
(2) The Licensed Access Terms of Work.
(3) The Licensed Access Rules.
(4) The Licensed Access Recognition Regulations.
1.3 To apply for a licence, to amend an existing licence, or
to receive further details of the scheme, please visit
the
Bar Standards Board's website, or contact Joanne Dixon,
Manager, Qualification Regulations: 020 7611 1444
.
Members of the Bar or clerks seeking guidance on Licensed Access
issues should contact the Ethical Enquiries line on 020 7611
1307, or by email.
Guidance for those seeking Recognition under the Licensed Access
Scheme
2.1 Licensed access recognises that
Solicitors are not alone in having the skills and knowledge to
benefit from the legal services offered by the Bar. Licensed
access provides the opportunity for the widest diversity of
organisations and individuals to be licensed to instruct a
barrister directly whether in the commercial, profit, non-profit or
voluntary sector and irrespective of size or of type of work. These
Guidance Notes use the generic term 'organisation' to describe the
full range of bodies from large public limited companies to small
charities and advice centres.
2.2 A fundamental principle of licensed
access is that access under its provisions is licenced. An
organisation or individual must be licenced by the Bar Council to
use the scheme and the licence will govern who in the organisation
may use the scheme and the type and scope of work in respect of
which the organisation or individual is licensed to instruct a
barrister directly. Within the Bar Council the licensing functions
will be carried out by the Access to the Bar Committee (see LARR
Regulation 1). The organisation or individual seeking a licence
must apply to the Bar Council and for this purpose must complete an
Application Form and provide such further information as may be
required.
2.3 Whilst there is no limitation to the
type of organisation that can seek authorisation the Access to the
Bar Committee will ensure that the body is equipped to provide
direct instructions to Counsel. The Committee will examine a wide
range of criteria in determining whether a proposed organisation or
individual should be granted a licence, including for example the
type of work which it wishes to refer directly to a barrister, its
expertise or experience, its familiarity with any relevant area of
law, its ability to obtain and prepare information and to organise
papers and information for the barrister and in a contentious
matter for the court, its ability to take charge and have the
general conduct of the matter on which it wishes to instruct the
barrister directly, the extent to which it has arrangements for
holding in separate accounts and maintaining as trust monies any
monies received from third parties, the extent to which the affairs
and conduct of the person or organisation or its members are
subject to professional, disciplinary, regulatory or other
organisational rules and have professional indemnity insurance (see
LARR Regulation 6).
2.4 The scope and type of work embraced
by the licence will depend on the expertise, skills and knowledge
of the organisation or individual applying for the licence.
For example, whilst some organisations may be licensed simply to
use licensed access to obtain written advices on policy matters,
others may be permitted to approach counsel for a wide range of
services including advocacy (see LARR Regulation 3).
2.5 The terms of a licence specifying the
name of the person or organisation, the period for which the
licence has been granted, the limitations or conditions on which
the licence has been granted are within the complete discretion of
the Access to the Bar Committee. Such limitations and
conditions may for example define the matters upon which they may
instruct counsel through licensed access, set out the
tribunals or courts in which a barrister may be instructed to
exercise a right of audience and/or provide that unless otherwise
first agreed in writing all instructions will be deemed to be given
and accepted on the terms of the Licensed Access Terms of Work as
approved by the Access to the Bar Committee (see LARR
Regulation 4(b)). A copy of the Licence must be sent to the
Barrister at the time of instruction enabling the barrister to
ensure that the licence covers the instructions (see LAR Rule
4(c)).
2.6 The status of an organisation can be
considered by the Access to the Bar Committee. Approval can be
given to an organisation or an individual, or to all or some of the
members of an organisation or to all or some of the employees of an
organisation or its members or of the individual (LARR Regulation
3(c)). Approval can be on a provisional or full basis and can be
limited in time (LARR Regulation 3(a) (b)).
2.7 The Access to the Bar Committee may
from time to time, approve additional persons or organisations,
withdraw approval either in whole or in part from any person or
organisation who has been licensed, increase reduce or otherwise
alter the period for which a licence has been granted, alter or
revoke the conditions or limitations which have been imposed under
the licence and cancel and demand surrender of any licence which
has been issued (see LARR Regulation 5).
2.8 Instructions under licensed access
can only be accepted where the client is properly authorised for
the type of work sought to be offered (see LARR Regulation 3(e) and
LAR Rule 1).
2.9 A barrister is not required to accept
work from a licensed access client and should not do so if the
barrister considers it in the interests of the lay client or the
interests of justice that an intermediary be instructed together
with or in place of the barrister. Such intermediary may be a
solicitor or other authorised litigator or some other appropriate
person or organisation (see BDR Rule 5(b)). If a barrister having
accepted instructions from a licensed access client considers it in
the interests of the lay client or the interests of justice that an
intermediary be instructed together with or in place of the
barrister the barrister must forthwith advise the licensed access
client in writing to instruct such intermediary and unless such
intermediary is as soon as reasonably practicable instructed the
barrister must cease to act and must return any instructions to
the licensed access client (see LAR Rule 8).
Checklist for Licensed Access Clients Proposing to
Instruct Barristers
- Is my case an appropriate case for instructing a barrister: see
guidance notes in section 3, paragraphs 3.2 to 3.5.
- How do I choose the right barrister for my case: see guidance
notes in section 3, paragraphs 3.6 to 3.8.
- How do I go about instructing a barrister: see guidance notes
in section 3, paragraphs 3.9 to 3.10.
- How are a barrister's fees calculated and how should they be
agreed: see guidance notes in section 3, paragraphs 3.6(4) and
3.10(4).
- What should I send to a barrister: see guidance notes in
section 3, paragraphs 3.11 to 3.15.
- What happens after I have instructed a barrister: see guidance
notes in section 3, paragraphs 3.16 to 3.20.
- How will I be billed: see guidance notes in section 3,
paragraphs 3.21 to 3.22.
- What do I do if I am unhappy about the service which has been
provided: see guidance notes in section 3, paragraphs 3.23 to
3.24.
Guidance on Instructing Barristers under the Licensed
Access Scheme
Introduction
3.1 These guidance notes are intended for
use by licensed access clients who are considering instructing a
barrister or barristers direct, whether for the purposes of
obtaining their advice or for the purposes of obtaining
representation in court under the new arrangements for direct
licensed access.
In which cases is it appropriate to instruct a
barrister?
3.2 The overriding consideration when
deciding whether it is appropriate to instruct a barrister alone,
or whether to instruct a solicitor (whether that solicitor in turn
instructs a barrister or not), is whether to do so would be in the
best interests of the client. This means that it is essential
to have a proper understanding of what a barrister can and cannot
do.
3.3 The following is an outline of those
things which a barrister is normally expected and entitled to
do:
(1) Advisory work (e.g., giving advice on the law generally
and/or on the merits of any particular matter, whether contentious
or non-contentious, and/or on the drafting of documents such as
contracts, standard terms and conditions, correspondence, letters
before actions, reports etc.,);
(2) Drafting of claim forms, petitions and other
applications;
(3) Drafting of statements of case;
(4) Advice on the factual and expert evidence which will be
needed in order to establish the case at the hearing, whether oral
or written;
(5) Advice on which witness statements, expert reports and
documents must or should be disclosed to the other side;
(6) Assistance in the preparation of affidavits and witness
statements for use at a hearing. There is an important distinction
between (i) taking a statement from a witness, which involves
interviewing the witness in order to elicit his or her evidence,
and (ii) assisting in the preparation of a witness statement. The
latter task typically includes identifying the matters the
statement should cover, reviewing a draft witness statement,
advising on questions of admissibility and weight of particular
passages of draft statements, and by settling from drafts a final
form of witness statement
1;
(7) Preparation of any documents, such as skeleton arguments,
chronologies, etc, used for the purposes of presenting a case in
court;
(8) Representation at any court hearing;
(9) Representation at a hearing before a tribunal other than a
court, for example a disciplinary tribunal;
(10) Advice on tactics in relation to the litigation generally
and its settlement.
3.4 There are some things, on the other
hand, which a barrister would not normally be expected or entitled
to do. In general barristers do not have the facilities or the
office back-up to undertake much of the general preparatory work
necessary to get a more complex case to trial. In particular,
barristers are not permitted to do the following:
(1) The management, administration and general conduct of
litigation including written or oral communication between the
parties or their advisors
2;
(2) Investigating and collecting evidence for use in court;
(3) The receipt or handling of client money
3.
3.5 In general, accordingly, unless the
licensed access client is equipped and prepared to undertake the
type of litigation support function normally undertaken by a
solicitor, the typical case in which a barrister might be
instructed directly to appear in court will be one:
(1) of lesser factual complexity; and
(2) where there is unlikely to be a need for extensive
investigation into and gathering of evidence, whether oral or
documentary.
Even in the more complex cases, or cases where extensive
investigation is required, it may be appropriate to instruct a
barrister direct to advise, or to appear in court on a particular
application within the litigation.
Choosing a barrister
3.6 The following factors are relevant in
determining the appropriate barrister.
(1) Whether the case merits more then one barrister. It may be
appropriate to instruct two (or more) barristers to work as a team,
possibly each from a different field of expertise.
(2) Whether the case merits the use of a Queen's Counsel, or a
junior barrister, or both. There is no hard and fast rule as to
when it is appropriate to use a Queen's Counsel. In general, it is
appropriate where the issues involved in the case are particularly
complex, where the result is likely to have significant
consequences for the client, and where there is a sufficient amount
at stake to warrant the higher cost. Similarly, there is no hard
and fast rule as to when it is appropriate to instruct both a
junior barrister and a Queen's Counsel. In general, it is
appropriate to do so where the criteria for the use of a Queen's
Counsel are satisfied and there is likely to be a significant
amount of preparatory, drafting or research work which could be
carried out by a junior barrister at a significantly lower cost
than if the Queen's Counsel were to do so.
(3) The seniority of the barrister. A barrister's seniority is
denoted in the various published directories and guides (see below)
by reference to the year in which he was called to the bar. A
barrister is normally called to the bar during the year between
completing his final year of studying for the bar (i.e., taking the
exams at the end of the bar vocational course) and completion of
his pupillage. In practice this means that a barrister called in,
say, 1990 will by October 1999 have been in practice since about
October 1991, i.e., 8 years. This is not, however, a hard and
fast rule. Some barristers might have followed another career
path (for example an academic career) between being called to the
bar and entering practice. The various directories of barristers
denote the seniority of a Queen's Counsel by the year in which he
took silk. Queen's Counsel are appointed in the April of each year.
The factors which will dictate the appropriate level of seniority
for a particular case are similar to those which dictate whether it
is appropriate to employ the services of a Queen's Counsel or a
junior barrister (see above).
(4) Expense. Particular regard should be paid to the cost of
employing the services of different barristers. In so doing,
the following should be taken into consideration:
(a) There are three basic methods by which barristers charge for
their services:
(i) an hourly rate so that the fee varies upon the amount of
time taken to complete the work;
(ii) a fixed fee agreed in advance for a particular piece of
work;
(iii) a "brief" fee, which is a fixed fee to cover preparation
for a hearing and the first day in court, and a "refresher" or a
daily charge for each subsequent day.
Additionally, some barristers may in certain types of case be
allowed and prepared to accept instructions pursuant to a
conditional fee agreement, in which the payment or the amount of
the fee will depend upon the outcome in the case.
Generally, licensed access clients should be prepared to
negotiate with the barrister or his clerk in relation to the method
of charging for the barrister's services as well as the overall
amount to be charged.
(b) In comparing hourly rates offered in respect of different
barristers, it should be borne in mind that a barrister well versed
in the relevant field of expertise is likely to spend fewer hours
on the matter than one who has a more general experience.
3.7 Each barrister has a professional
duty to advise his client whenever he considers either that the
client ought to be represented by someone with a different
expertise, or by someone at a lower or higher level of seniority.
In addition, each barrister owes a duty to consider, and advise, as
to whether the case warrants the assistance of (as the case may be)
a Queen's Counsel or junior barrister, or alternatively no longer
merits the continued use of either the Queen's Counsel or junior
barrister. The barrister also has a duty to advise whether the case
merits the involvement of a solicitor.
3.8 There are a number of ways in which
to identify a suitable barrister for the relevant case.
(1) Recommendation from others;
(2) The Bar Council publishes a Bar Directory that lists all
barristers currently practising and gives details of the expertise
of barristers in particular chambers.
(3) Directories are published by a number of specialist Bar
Associations, for example by the Chancery Bar Association and the
Commercial Bar Association, which contains lists of barristers
(though not all barristers) practising within those fields and
details of the expertise of barristers in particular chambers;
(4) There are a number of directories published by private
organisations, many of which indicate the views of the editors of
the directory of particular barristers operating in particular
fields of expertise. These views, being subjective, need to be
treated with caution.
(5) Having identified a set or sets of chambers whose members
are held out as having expertise in the relevant field, it is worth
contacting the chambers to discuss with the clerk the member or
members who would be most suitable for your purposes, and to
discuss the possible charging structure and charge-out rates of the
relevant members.
Instructing a barrister
3.9 Once the licensed access client
has decided upon a barrister to instruct, it is always preferable
to contact that barrister's clerk in the first instance in order to
ensure that the barrister is available.
3.10 In making enquiries of the
barrister's clerk, there are four particular points to check:
(1) Is the barrister available to carry out the specific piece
of work in relation to which he or she is to be instructed?
Barristers are sole practitioners. This has the advantage that when
a barrister is instructed it is the barrister himself or herself
who carries out the work. In this respect a barrister differs
from a solicitor who will regularly delegate work to an assistant
or assistants. It has, however, the disadvantage that any
particular barrister will already have commitments to other
clients, including commitments to complete paper work by a certain
date, or to appear in court on a certain date or dates, so that his
or her availability may be limited.
(2) If the barrister is to be instructed in a matter that will
be ongoing, is he or she likely to be available for any court dates
that are to be arranged in the future? Sometimes court hearings are
arranged for the convenience of the parties, so that they can
ensure that the barrister of their choice represents them. On
other occasions, however, court hearings are arranged without
regard to the availability of the parties' barristers. Whilst it
will not be possible for the barrister to commit to be free for any
lengthy period of time within which hearings might occur, it is
sensible when initially instructing a barrister to enquire whether
he or she has existing commitments such that it is known, or
likely, that they will not be free during the period of time when
prospective court hearings are likely to occur. It is sometimes
sensible to enquire, at the outset, whether there are other members
of chambers of a similar level of experience and with similar
expertise who would be able to take over in respect of future court
hearings in case the barrister of first choice subsequently became
unavailable.
(3) If the barrister is being asked to advise in conference, or
to attend a specific court hearing, his or her clerk should be
asked at the outset to reserve the date and time in the barrister's
diary for that purpose.
(4) Fees. A barrister's fees are normally negotiated with his or
her clerk. The way in which barristers charge for their services is
referred to in paragraph 3.6(4) above. Negotiations at the outset
should include whether a fixed fee should be paid, and if so for
how much, whether payment should be on the basis of an hourly rate,
in which case an indication of the number of hours which the matter
is likely to take should be asked for and given, or whether a brief
fee/refresher approach is appropriate, in which case the amounts
should be agreed in advance. In addition, in any case where a
fixed fee is agreed, you should ensure that there is clear
agreement with the barrister's clerk as to the extent of the work
to be included in the fee (e.g., whether it is to include advising
both in conference and in writing, or only one of these).
Identifying the information and materials to send to the
Barrister
3.11 There is no required form or
procedure for informing a barrister of the matters in relation to
which he is to advise or represent you. The appropriate quantity of
material to provide, and the appropriate form in which to provide
it, will depend upon the circumstances of each case and, to an
extent, the requirements of the particular barrister.
Solicitors have developed a particular format and style of
expression in instructions to barristers. Whilst there is no
reason why licensed access clients should not adopt a similar
format and style, there is also no reason why they
should. It is the content of the instructions that is
important, not the form. In most cases, it is sufficient that the
information is provided to the barrister in the form of a letter or
a note.
3.12 In an urgent case it is possible to
attend a conference with a barrister without any prior written
instructions. Similarly, where urgent applications to court are
concerned, it is more important that the barrister is provided with
the necessary materials to make the application as soon as
possible, than that time is spent on drafting written
instructions.
3.13 Whenever you are in doubt as to any
aspect of the instructions, telephone the barrister direct. A
great deal of unnecessary time and expense can be saved by an
initial discussion with the barrister as to the materials he will
need at the outset to see.
3.14 The following guidelines are to be
read in the light of the preceding paragraphs and are intended to
be of general assistance only.
3.15 As a general rule, the following is
the information and material which a barrister would normally
expect to be sent to him upon his initial instruction:
(1) A brief description of the circumstances giving rise to the
issue in relation to which he is instructed, including a brief
history of the matter and a description of the parties
involved.
(2) An outline of the issue or issues in relation to which he is
either instructed to appear in court or to advise.
(3) In the case of existing proceedings, copies of any documents
already filed with the court, or exchanged between the parties
which are relevant to the issue upon which the barrister is
instructed;
(4) A clear statement of what it is the barrister is being asked
to do. For example:
(a) where advice is sought, state whether the barrister is asked
to advise on a specific issue, or to advise more generally on the
issues which he thinks arise out of the circumstances identified to
him;
(b) where the barrister is requested to draft or settle a
document, then state the document or documents which he is required
to draft (e.g., a statement of case or application), or settle
(e.g., an affidavit or a witness statement);
(c) where the barrister is requested to attend a hearing,
identify the hearing and state clearly what result from the hearing
the barrister is instructed to try to obtain.
(5) Photocopies of those documents that you think are relevant
to the matters upon which his advice is sought. The following
should be noted:
(a) It is in relation to this aspect that communication with the
barrister is particularly recommended, whether prior to sending any
instructions, or having sent instructions with a few "core"
documents so as to identify what other documents ought to be
sent.
(b) It is important not to send original documents, since these
should not be marked and should remain in their original form and
should be available for inspection by third parties, whether by
reason of disclosure orders which might be made in litigation or
otherwise.
(c) Where correspondence or similar documentation is to be sent,
it will save time and expense if it is arranged in chronological
order.
(d) It is also helpful to include an index of the documents, or
of the classes of documents, sent.
(6) A clear statement of the time within which a response is
sought from the barrister.
(7) Where there is a time limit on commencing proceedings, or
taking a step in existing proceedings, or for any other matter, a
clear statement of this in the instructions.
Steps following the initial instructions
3.16 Having received the instructions,
the barrister should take an initial look through the papers. There
are four potential reasons why at this stage the barrister could
decline to continue to act:
(1) It is possible that the barrister will identify a conflict
of interest (for example because he is acting or has previously
acted for another party in the same case) which was not picked up
during your discussions with his or her clerk.
(2) The barrister (in cases other than where the licensed access
client is able to undertake litigation support such as that
normally undertaken by a solicitor) may decide that, because the
case requires taking detailed statements from witnesses, or
extensive office back-up that he or she does not have, it is not an
appropriate case for direct access and needs the expertise of a
solicitor. In those circumstances the barrister is required
to take no action until an appropriate intermediary is
instructed.
(3) The barrister may decide that on closer inspection of the
papers the subject matter falls outside his or her area of
expertise, or that the case is more complex than he or she is
equipped to deal with. He or she is then entitled to decline
the instructions.
(4) The barrister may decide, having accepted the instructions
on the basis that they were likely to occupy a certain amount of
time, which he or she had available, that the instructions will in
fact require considerably more of his or her time, which is not
available.
3.17 Alternatively, the barrister may
decide that whilst the case is within his or her expertise, it is
more suitable for a barrister of different seniority. In that
case, the barrister is obliged to advise you of his view, but you
may choose whether or not to accept that advice.
3.18 Assuming that the barrister is able
to continue to work on the case, the course of conduct thereafter
will depend upon the circumstances of the individual case.
3.19 It will often be useful to arrange a
face to face meeting with the barrister in order either to discuss
the advice that the barrister is to give, or to discuss what work
needs to be done in preparing the case for court. Such
a meeting may take place either at the barrister's chambers, or at
the premises of the licensed access client. It is often easier for
the barrister to hold the meeting at his or her chambers, where he
or she has ready access to the background material needed in order
to advise, unless the volume of material, the need to view
equipment or a site or the convenience of the client or witnesses
suggests otherwise.
3.20 A face to face meeting is
particularly useful in order to discuss and agree upon the division
of work as between the barrister and the licensed access client in
progressing a case towards a court hearing (bearing in mind those
matters which the licensed access client can expect, or should not
expect, the barrister to do, as set out earlier in these
guidelines).
Billing
3.21 The barrister will send a fee note,
either at the end of the case, or after each separate item of work
done or, in an ongoing matter, at periodic intervals.
3.22 The licensed access client is
contractually liable for the fees of the barrister. Any disputes
with the barrister over the fee should be taken up with the
barrister's chambers as soon as possible. It will often be
the case that any dispute over the fee, or other complaint, can be
resolved informally with the barrister's chambers.
3.23 The Bar Council is not usually able
to involve itself in disputes over fees, except where there is an
allegation of professional misconduct
4. If the fee dispute cannot be resolved informally,
accordingly, there is little alternative but for the matter to go
to court.
3.24 If you have any concerns about the
services provided by your barrister, you should, in the first
instance, refer these to the barrister himself to be resolved
through the chambers complaints procedure if possible. If you
remain dissatisfied, it is open to you to approach the Bar Council
and you should write to the Secretary of the Professional Conduct
and Complaints Committee at the Bar Council for further information
about this.
Practical matters
3.25 Appended to these guidance notes is
guidance on the preparation of witness statements
5.
Appendices
1. An application form for those seeking recognition as licensed
access clients
2. The Licensed Access Terms of Work
3. The Licensed Access Rules
4. The Licensed Access Recognition Regulations
1 Save in exceptional circumstances, it is not
appropriate for a barrister who has actually taken (as opposed to
having assisted in the preparation of) a witness statement to act
as an advocate at the trial. Usually, accordingly, it is not
appropriate for the barrister, in the event that he or she is
intended to appear as the advocate at trial, to take a witness
statement. It is open to the Licensed access client, however,
to instruct a barrister, either a junior in the case where there is
to be a more senior barrister presenting the case in court, or a
barrister who is not to be instructed at the trial, specifically to
take witness statements. The primary requirement is that the
witness statement is in the intended witness' own words.
2 Barristers do, however, frequently assist
their clients in the drafting of correspondence which is sent to
other parties under the client's own name.
3 This may have important consequences,
particularly in relation to settlement negotiations.
4 See the Bar Code of Conduct published by the
General Council of the Bar.
5 Taken from section 3 of the Bar Code of
Conduct.