Role of a Barrister in Non-Solicitor cases
Role of Barristers in Non-Solicitor Civil Cases in
England and Wales
1. This paper sets out the present
understanding of the Professional Practice Committee ("PPC") and
the Access to the Bar Committee ("ABC") as to the law on the role
which may lawfully be performed by a barrister when instructed in
the context of civil litigation in England and Wales by a client
who does not instruct a solicitor or other intermediary authorised
under the Legal Services Act 2007 ("LSA 2007") to conduct
litigation. Account is taken in this guidance of the decision
of the Court of Appeal in Agassi v Robinson1,
which clarified a number of matters which had previously been very
uncertain, and the opinion of the Standards Committee of the Bar
Standards Board ("BSB") as to the continued relevance of that
decision under the LSA 2007.
Scope of this paper
2. The situations with which this paper is
principally concerned are those in which a self-employed barrister
is instructed in the context of civil litigation in England and
Wales by a person who is neither a solicitor nor another person who
is authorised to conduct litigation. This may happen in the
a. Under the Licensed Access Rules,
where the licensed access client is permitted to instruct counsel
to provide advocacy in court and/or other services in a litigation
Only some of those permitted to instruct a barrister under the
Licensed Access Rules are permitted to do so for the purposes of
advocacy in court or for other purposes in a litigation
context. Members of the Bar instructed in such cases should
always refer to the Licensed Access Rules and related material and
guidance on the Bar Standards Board's website2.
b. Under the Public Access
Before accepting Public Access
instructions a barrister must have completed the appropriate
training and take reasonable steps to ascertain whether it would be
in the best interests of the potential client or in the interests
of justice for the potential client to instruct a solicitor or
other authorised person to conduct the litigation. The Bar
Standards Board has issued guidance on Public Access (which is
available on its website), to which members of the Bar should also
3. This guidance does not cover criminal
cases. It is also not concerned with instructions to which the
International Practice Rules apply.
4. This guidance will apply to employed
barristers if they are not acting within the scope of rule 504, 506
or 508 of the Code of Conduct and the Employed Barristers (Conduct
of Litigation) Rules (Annex I to the Code of Conduct).
The legal framework
5. The LSA 2007 defines the conduct of
litigation and the exercise of a right of audience as "reserved
legal activities"3. Such activities may only
be carried out by an "authorised person"4 or an
"exempt person"5. Any unauthorised and
non-exempt person who carries them out will commit an offence.
6. The "conduct of litigation" is
defined6 as -
"(a) the issuing of proceedings
before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings,
(c) the performance of any ancillary functions in relation to such
proceedings (such as entering appearances to actions)".
7. A "right of audience" is defined7 as the right to appear before and address a court,
including the right to call and examine witnesses; but it does not
include a right to appear before or address a court, or to call or
examine witnesses, in relation to any particular court or in
relation to particular proceedings, if immediately before the
appointed day no restriction was placed on the persons entitled to
exercise that right.
The application of that legal framework
8. The BSB has not so far exercised its
power to authorise members of the self-employed bar to conduct
litigation. It has authorised employed barristers8 to do so in certain circumstances9, but in other situations employed barristers are in
the same position as self-employed barristers. There is a
tool on the Bar Council website which barristers may use to
identify whether or not they are entitled to conduct litigation,
and to what extent.
9. Subject to those exceptions to the general
position, a key limitation on the nature of the legal services
which a member of the bar may supply, or agree to supply, is that
those legal services must not include anything involving "the
conduct of litigation" within the meaning of LSA 2007. This
limitation applies in relation to all civil litigation in England
10. As a result, all steps in any such
litigation in which a barrister is instructed which are covered by
the term "the conduct of litigation" must be taken by someone
else. Guidance on the likely scope of this term is given
11. Where a barrister is instructed by a
solicitor or another person authorised to conduct litigation, then
all of those steps will be the responsibility of the solicitor or
other authorised person.
12. Where a barrister is instructed by
someone other than a solicitor or another authorised litigator,
then there will be no person involved in the case (including any
intermediary, whether under the Licensed Access Rules or the Public
Access Rules, and anyone else assisting the lay client) who is
authorised under the LSA 2007 to conduct litigation. As a
result, it will usually be unlawful for anyone other than the lay
client to take any step which is within the meaning of the term
"conduct of litigation". The main exception to this will be
if there is someone else involved who is an "exempt person" in
relation to the litigation, but that person may not be entitled to
take steps on behalf of the client which are required under the
Civil Procedure Rules ("CPR").10
The meaning of "the conduct of litigation"
13. Until relatively recently there was
considerable doubt as to what activities were confined to the
person who, in relation to a particular case, enjoyed "the right to
conduct litigation". That doubt arose by reason of uncertainty as
to the scope of and inter-relationship between provisions contained
in the Solicitors Act 1974 and in the Courts and Legal Services Act
1990. Those provisions have now been replaced (so far as
relevant for this guidance) by provisions in the LSA 2007.
14. Under s.119 of the 1990 Act, as amended by
the Access to Justice Act 1999, the expression "right to conduct
litigation" was defined to mean -
"the right --
(a) to issue proceedings before any
(b) to perform any ancillary functions in relation to proceedings
(such an entering appearances to actions)"11
15. The relevant statutory provisions,
including s.119 of the 1990 Act, were considered by the Court of
Appeal in Agassi v Robinson  EWCA Civ 1507;  1 All ER
16. The expression "any ancillary functions" is
not precise. In Agassi the Court of Appeal held it was
confined to -
"... formal steps required in the
conduct of litigation."11
but considered it was not necessary for them to decide the
precise parameters of the definition beyond this.
17. In response to a query from the PPC, the
Standards Committee of the BSB has stated that (despite the altered
definition) it considers that the LSA 2007 did not make any change
of substance to the scope of the term "the conduct of litigation",
and that Agassi is authority for the meaning of that phrase under
the LSA 2007. The PPC and ABC consider that this is likely to
be correct. This guidance proceeds on the basis that this
will be the approach taken by the BSB under the Code of Conduct,
and that it is correct in law.12
Conclusion as to activities which a barrister may not
18. On the basis explained in paragraph 17
above, it follows that a barrister may not lawfully do the
following in relation to civil litigation in England and Wales
(subject to the exceptions mentioned in paragraph 4 of this
a. Issue a claim form or any other
originating process on behalf of a client.
b. Provide his address as a client's address for service.
c. Issue a court application on behalf of a client.
d. Acknowledge service on behalf of a client.
e. Sign a disclosure list on behalf of a client.
f. Instruct an expert witness or other person on behalf of a
g. Accept personal liability for the payment of the fees of an
expert witness or other person instructed on behalf of a lay
h. Take, on behalf of a client, any other formal step in civil
litigation of a sort that is required to be taken either by the
client personally or by a solicitor or other authorised litigator
on the record.
19. That list is illustrative and not
exhaustive. Its purpose is to show the areas in which
barristers need to exercise caution.
20. As stated above, it would also be unlawful
for any other person to perform such activities, other than the lay
client in relation to that client's own litigation or another
person who is authorised to conduct litigation (or exempt) and who
is instructed by the client for that purpose. Even if it is
lawful for an exempt person to perform some or all of those
activities, however, an exempt person is not within the definition
of "legal representative" under CPR rule 2.3(1), so any step
required under the CPR to be taken by the litigant13 or his "legal representative" cannot validly be
taken by anyone else.
21. It may also be the case that the
service of formal litigation documents, such as statements of case
and witness statements, under cover of a letter or e-mail would
involve the conduct of litigation on the part of the person by or
in whose name the letter or e-mail is sent. This appears to
be the view of the BSB, as set out in its Public Access Guidance
for Barristers. Accordingly, the safe course would be for
such service to be effected under cover of a letter or e-mail sent
by, and in the name of, the lay client. A barrister is,
however, permitted to draft such a letter or e-mail.
Code of Conduct restrictions
22. Quite separately from the statutory
restrictions on unauthorised (and non-exempt) persons conducting
litigation, the Bar Code of Conduct also contains restrictions on
the professional services which a barrister may supply, or offer to
supply. Due to relatively recent changes in the Code of
Conduct, these restrictions have been considerably narrowed in
23. In addition to an express prohibition
(under paragraph 401(b)(ii)) on barristers conducting litigation in
the course of practice14, the principal remaining
restriction of relevance in this context15 is the
further restriction in paragraph 401(b)(ii), by which a barrister
must not in the course of his practice conduct correspondence or
other work involving other parties except as permitted by rule
24. Separate guidance on services which
barristers were previously not permitted to provide (in particular,
investigating or collecting evidence, taking witness statements,
and conducting correspondence (under rule 401A)) is available on
the BSB's website16.
Activities by intermediaries who are not authorised to
25. On the basis explained in paragraph 17
above, it is believed that the performance of the following
services on behalf of a client in a litigation context does not
involve "the conduct of litigation".
If that is right, then there is nothing unlawful in any person
acting as an intermediary for, or assisting, a lay client
performing these services on behalf of the lay client -
a. Delivering to a court office a
claim form, appeal notice, application or the like, provided it has
been signed by the client himself.
b. Typing or printing out an appeal notice, statement of case or
other formal court document, which has been drafted by a
c. Delivering documents to another party (but not any formal
d. Taking a statement from a prospective witness.
e. Conducting general correspondence with the opposing party18.
f. Preparing a bundle of documents for use in a court
g. Drafting instructions to a barrister.
h. Sitting behind a barrister during a hearing to provide
Professional Practice Committee
Revised April 2012
1  EWCA Civ 1507;  1 WLR 2126;
 1 All ER 900.
2 At the time of writing, much of the
material related to Licensed Access appears in the 'Qualifications
Committee' section of the BSB's website.
3 LSA 2007, s.12.
4 LSA 2007, ss.13-18.
5 LSA 2007 s.19 and Schedule 3.
6 LSA 2007, Schedule 2 paragraph 4(1).
7 LSA 2007, Schedule 2 paragraph 3.
8 Including those who are members of, or
employed by, an Authorised Body.
9 Please refer to the rules mentioned in
paragraph 4 of this guidance.
10 Litigants themselves will ordinarily be
"exempt persons" under LSA 2007 in relation to litigation to which
they are parties: see s.19 and Schedule 3 para.2(4). It is
for this reason that they do not need to be authorised to conduct
that litigation. Other persons may also be "exempt persons"
in relation to the conduct of litigation: see s.19 and Schedule 3
para.2. Two particular situations in which this may occur are
where some other statute gives a person authority to take
particular steps which involve the conduct of litigation, and where
someone has been authorised by the court to conduct litigation in
relation to the particular proceedings.
11 At .
12 As the conduct of correspondence is
specifically permitted under paragraph 401A of the Code of Conduct,
it may well be that a barrister would be authorised to provide this
particular service in any event. It should be noted, however,
that paragraph 9 of the Bar Standards Board's Guidance on
Self-Employed Practice says that: "Conducting correspondence under
rule 401A does not extend to the conduct of litigation, as
explained by the Court of Appeal in Agassi ...". See also
paragraph 21 below.
13 Or, in appropriate cases, by a
14 Further guidance on the practicalities
of this can be found on the BSB's website under the link entitled
"Issuing of documents in court by a barrister" (which deals with
the particular context of lodging bundles and the issuing of
applications), and in the BSB's Public Access Guidance for
15 Other restrictions in rule 401 may also
apply in particular circumstances, however, particularly in
circumstances where the relaxations of previous prohibitions on the
work that barristers could perform were subject to
limitations. Barristers should refer to rule 401 in
16 See the BSB's 'Guidance on
Self-Employed Practice', and note also paragraph 21 above.
17 Subject to footnote 18 below.
18 Correspondence under cover of which the
service of formal documents (such as statements of case or witness
statements) is effected may involve the "conduct of litigation", so
the safe course would be for this to be sent by, and in the name
of, the client: see paragraph 21 above.