Role of a Barrister in Non-Solicitor cases

Role of Barristers in Non-Solicitor Civil Cases in England and Wales

Introduction

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 following situations:-

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 context.

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 Rules.

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 refer.

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, and
(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 and Wales.

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 below.

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 court; and
(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 [2005] EWCA Civ 1507; [2006] 1 All ER 900.

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 lawfully perform

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 guidance) -

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 lay client.
g. Accept personal liability for the payment of the fees of an expert witness or other person instructed on behalf of a lay client.
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 scope.

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 401A.

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 conduct litigation

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 barrister.
c. Delivering documents  to another party (but not any formal service)17.
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 hearing.
g. Drafting instructions to a barrister.
h. Sitting behind a barrister during a hearing to provide administrative assistance.

 

Professional Practice Committee
Bar Council
Revised April 2012

1 [2005] EWCA Civ 1507; [2006] 1 WLR 2126; [2006] 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 [56].
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 litigation friend.
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 Barristers.
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 full.
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.