Douglas Adams wrote ‘If it looks like a duck, and quacks like a duck, we have at least to consider the possibility that we have a small aquatic bird of the family anatidae on our hands.’ Following Baxter v Doble  EWHC 486 (KB), a case which has caused concern to some public access barristers, we may need to adopt a similar approach to the issue of whether the work we agree to do amounts to the conduct of litigation.
Mrs Doble was a legal executive who ran a business acting for landlords in possession cases. In the action in question she had, amongst other things, drafted pleadings, corresponded with the tenant’s solicitors, sent documents to court and provided general advice. By-and-large, the sort of things a barrister might do in a public access case.
The tenant brought an application to commit her for contempt on the basis she was conducting litigation when not authorised to do so. Cavanagh J wrestled with the definition of the conduct of litigation in the Legal Services Act 2007 – as others have done before him. The Court of Appeal in Agassi v Robinson famously commented that ‘It is unfortunate that this important definition is so unclear.’
Some of the things Mrs Doble had done clearly crossed the line – for example, it is well recognised that formal service on an opponent and filing court documents falls within the definition. Others, like drafting, advising and corresponding, would not in themselves have done so. However, Cavanagh J was of the view that the services she provided to her client should be viewed in the round. She had done everything in relation to the proceedings that a solicitor would have done. That amounted to ‘prosecution’ of the proceedings for the purpose of the definition. To put it another way, if it looks like you’re being a solicitor, you probably are.
The extent to which this decision will impact on public access practice is unclear. The BSB has put a warning sticker on its ‘Conducting Litigation’ guidance, saying it is in the process of being reviewed in the light of Baxter v Doble. Experience suggests such reviews are not always conducted with alacrity. Absent definitive guidance, barristers instructed on a direct basis may think it prudent to proceed with caution. Or, better still, at the expense of £90 and a 11-page form, apply to the BSB for the conducting litigation ticket.
Andrew Granville Stafford is Head of Civil Litigation at 4KBW. He is a long serving member of the Bar Council’s Ethics Committee and has written and contributed to a number of guidance papers on the Ethics Hub. Andrew is a former Chair of the Bar Council’s Direct Access Panel and provides BSB approved training for public access barristers through Barristers Direct.
Bar Council Public Access training and events -
The Bar Council organises formal training to become a Public Access barrister or clerk with practical coursework for working with Public Access clients and handling litigation in Public Access cases. Find out more information.
Bar Council Ethics and Practice guidance -
The following Bar Council ethics guidance has been recently updated:
Issuing proceedings: this Bar Council ethics guidance is for all practising barristers and highlights the professional obligations related to issuing proceedings.
Direct access and conduct of litigation: considers issues arising in cases when barristers are not instructed by a solicitor or other professional client.
Public Access FAQs: for all barristers who are qualified to accept public access instructions. It provides advice to barristers on issues arising from public access cases.
Use of the Crown Court Digital Case System (DCS) and the Common Platform: for all practising criminal barristers. It provides advice on the use of the Crown Court Digital Case System, the Common Platform and avoiding the conduct of litigation. The information covers pupils’ access, BSB guidance, and using both systems to lodge, file or serve documents.
Browse all of the Bar Council Direct Access guidance via the Ethics and Practice Hub.