Role of Barrister in Non-Solicitor Cases
Introduction
1. This paper sets out the Bar Councils present understanding of the law on the role which may lawfully be performed by a barrister when instructed in the context of litigation by a client who does not instruct a solicitor or other authorised litigator. Account is taken in this paper of the recent Court of Appeal decision, Agassi v Robinson1, which clarified a number of matters which had previously been very uncertain2.
2. It is, of course, a relatively unusual occurrence for a barrister to appear in the High Court or the County Court other than on the instructions of a solicitor. Nothing in this paper should be taken to suggest that the Bar Council envisages that it will, or should, become the normal arrangement.
Scope of this paper
3. Occasionally a barrister may be instructed for advocacy or litigation paper work services by a person, other than a solicitor, who is an authorised to conduct litigation. Currently this may occur upon the instructions of the following:-
a. Employed barristers3
b. Patent agents conducting patent appeals4
c. A small number of patent agents who have acquired the right to conduct any kind of litigation involving intellectual property5
d. Officers of the Children and Family Court Advisory and Support Service6
In such situations the instructing professional should perform the restricted activities described below.
4. The situations with which this paper is principally concerned are those where a barrister is instructed in a litigation context by a person who is neither a solicitor nor an authorised litigator. This may occur in the following situations:-
a. Tax appeals in which the barrister is instructed by a member of the Institute of Chartered Accountants, the Chartered Institute of Taxation, the Association of Taxation Technicians, the Institute of Indirect Taxation or the Association of Chartered Certified Acountants. Under the Bars Licensed Access scheme such tax professionals are entitled to instruct a barrister, if they have themselves acted (with or without a barrister) before the Commissioners or Vat Tribunal.
b. Under the Bars Licensed Access scheme a small number of individuals or bodies have been granted licences to instruct barristers for advocacy in court. Such licences are unlikely to have been granted other than to persons who have demonstrated a high degree of understanding of the litigation process.
c. Public access. Since July 2004 the old prohibition on a member of the public instructing a barrister has ceased to exist. Prior to accepting instructions under the Public Access Rules a barrister must undertake an approved training course. Before accepting public access instructions a barrister must take reasonable steps to ascertain whether it would be in the best interests of the client or the interests of justice for the lay client to instruct a solicitor. Although it is likely to be relatively unusual for a barrister to undertake work in the High Court or County Court on public access, it is, subject to the above, perfectly permissible.
The "right to conduct litigation"
5. The Courts and Legal Services Act 1990 envisages that in every case in court there will be somebody who has the "right to conduct litigation". By s.28(2) that right exists in the following situations:-
a. Right to conduct litigation granted by an authorised body, such as the Law Society.
b. Right to conduct litigation conferred by an enactment.
c. Right to conduct litigation granted by Court in relation to the proceedings.
d. Litigant in person7
6. Cases carried out by barristers on public access are, of course, likely to fall within category (d) above, that is under s.28(2)(d). Until now licensed access cases have also fallen within s.28(2)(d) -- in other words, the lay client has signed and submitted the claim form or appeal notice in person, and has been a litigant in person for the purposes of formal steps at court. In all such cases, it is the lay client who must perform the restricted activities described below.
7. It may be that in future tax professionals and others who wish to secure the cost savings and other advantages of direct instruction of the Bar will seek a grant from the court under s.28(2)(c). In any cases in which grants are made, it would be permissible for such persons to perform the restricted activities described below.
8. Until very recently there was considerable doubt as to what activities were confined to the person who, in respect of a particular case, enjoyed "the right to conduct litigation". That doubt arose by reason of uncertainty as to the scope of the two statutory provisions which contained the restrictions, namely:
a. s. 20 of the Solicitors Act 1974
b. Courts and Legal Services Act 1990
s. 20 of the Solicitors Act 1974
9. By s. 20 of the Solicitors Act 19748 it is enacted:-
(1) No unqualified person shall --
(a) act as a solicitor, or as such issue any writ or process, or commence, prosecute or defend any action, suit or other proceeding, in his own name or in the name of any other person, in any court of civil or criminal jurisdiction;
.....
(2) Any person who contravenes the provisions of subsection (1) --
(a) shall be guilty of an offence and liable on conviction on indictment to imprisonment for not more than two years or to a fine or to both; and
(b) shall be guilty of contempt of the court in which the action, suit, cause, matter or proceeding in relation to which he so acts is brought or taken and may be punished accordingly; ....
10. The Solicitors Act 1974 defines an "unqualified person" as a person who has not been admitted as a solicitor and who does not have a practising certificate9
11. By s.28(6) of the Courts and Legal Services Act 1990 this section "shall not apply in relation to any act done in the exercise of a right to conduct litigation". Therefore, persons who have been granted the right to act as litigators are not caught by its restrictions.
Courts and Legal Services Act 1990
12. As mentioned above, the Courts and Legal Services Act 1990 introduced a statutory scheme of regulation of the "right to conduct litigation".
13. By s.70(1) of the 1990 Act:
If any person does any act in the purported exercise of ... a right to conduct litigation in relation to any proceedings or contemplated proceedings when he is not entitled to exercise that right he shall be guilty of an offence.
14. By s.119 of the 1990 Act, as amended by the Access to Justice Act 199910, the expression "right to conduct litigation" is 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)
15. 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 litigation11
Conclusion as to activities which a barrister may not lawfully perform
16. It follows that a barrister in private practice may not lawfully do the following:-
a. Issue a claim form or any other originating process on behalf of a client.
b. Provide his address as the clients address for service.
c. Issue an application to a court on behalf of a client.
d. Acknowledge service on behalf of a client.
e. Perform on behalf of a client any other formal step on behalf of a client in litigation.
17. as stated above, it would also be unlawful for an accountant or other person exercising licensed access to the Bar to perform such activities.
Code of Conduct restrictions
18. Quite separately from the statutory restrictions on non-authorised persons acting as litigators, the Bar Code of Conduct contains further restrictions on the professional services which a barrister may perform. The principal such restrictions of relevance in this context are those in Code 401(b)(ii)-(iii), by which a barrister must not in the course of his practice:
(ii) conduct litigation or inter partes work (for example the conduct of correspondence with an opposing party, instructing any expert witness or other person on behalf of his lay client or accepting personal liability for the payment of such persons;
(iii) investigate or collect evidence for use in any Court;
19. The policy reason for these restrictions is connected with professional regulation. If barristers were to extend their range of services into these fields more extensive and expensive regulation, more akin to that of the Law Society, would reasonably be expected.
Activities by professionals exercising licensed access
20. It is believed that there is nothing unlawful if an accountant or other tax professional, or, indeed, any person acting as an intermediary for a lay client, performs the following services in a litigation context:-
a. Delivering to a court office a claim form, appeal notice, application or the like, provided it has been signed by the party 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. Service of a claim form or other documents.
d. Taking a statement from a prospective witness.
e. Correspondence with the opposing party.
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.
1] [2005] EWCA Civ 1507, The Times December 22nd, 2005
2] Owing to that uncertainty the Bar Council has not previously been able to issue any guidance on this topic.
3] By s.28 Courts and Legal Services Act 1990 as amended the Bar Council is authorised to grant the right to conduct litigation. It has granted the right to conduct litigation to employed barristers where they are acting for their employer, or, if their employer is a solicitor, for a client of their employer.
4] By virtue of s. 104(2) Patents Act 1977
5] The Chartered Institute of Patent Agents has been authorised to grant such right to its members pursuant to the Courts and Legal Services Act 1990.
6] By s.15 Criminal Justice and Court Services Act 2000
7] The actual language of the sub-section is "where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such party, if this Act had not been passed". in Agassi the Court held that this meant simply -- a litigant in person.
8] As amended by the Courts and Legal Services Act 1990 s.125(7), Sch 20
9] Solicitors Act 1974 s.1
10] Access to Justice Act 1999 Sch 6 para 10(3)
11] Paragraph 56
