How do I Instruct a Barrister?
There are two ways to instruct a barrister : the traditional route and the public access (sometimes referred to as direct access) route.
Traditionally a member of the public would first instruct a solicitor who would then instruct a barrister on their behalf. In this situation the barrister has both a ‘lay client’ (the member of the public) and a ‘professional client’ (the solicitor).
In this situation you would only engage and pay for a barrister when required but you will be paying for the services of your solicitor throughout. Naturally, this can work out rather expensive and will often involve some duplication of work.
Public access (also called direct access or direct public access) is a relatively new scheme (since around 2004) which allows a member of the public to instruct a barrister directly.
Not all cases will be suitable for direct access and a barrister can only deal with a case under this scheme where it is in the best interests of the client and it will usually only be a suitable route where the client is able to do much of the work that a solicitor would ordinarily do i.e. the individual is able to manage their case and paperwork themselves (conduct litigation).
A barrister will often (but not always) be involved with a case on and off throughout the duration of the matter. A specific barrister may not always be available for a particular hearing or may not be able to deal with a specificities piece of written work by a deadline because of prior commitments. This can be a disadvantage to the direct access scheme of instruction.
Is a Direct Access Barrister a viable option for my case?
Not all cases are suitable for direct access.
It is particularly important that you ask yourself whether you are able to manage your own paperwork and to monitor and keep to deadlines.
If you are confident that you are able to manage the administration involved with running your case then you might want to consider approaching a direct access barrister who can provide specific advice and assist in drafting the documents whilst you maintain the management of your case. This would save on the expense of having a solicitor managing the process for you. Naturally, this may result in a cost savings but that is only one consideration.
What can a Direct Access Barrister do for me?
A direct access barrister can advise, represent you in court and prepare documents for you. They can do that at any stage of the case – it is not necessary for them to be involved at the beginning or even at the end of the matter.
A direct access barrister (unless they have specific authorisation to do so) cannot ‘conduct litigation’. This means that the barrister cannot:
- Issue proceedings, applications or appeals on your behalf;
- Accept service of proceedings on your behalf;
- File or serve documents on your behalf.
Notwithstanding those restrictions, a direct barrister will be able to assist you in this matters listed above, they just cannot do those things directly on your behalf unless they have the additional authorisation to conduct litigation.
It is also worth emphasising that a barrister who is not authorised to conduct litigation cannot ‘manage’ your case for you; you will be responsible for monitoring and meeting deadlines and complying with directions of the court – you will have conduct of the litigation, not the barrister.
I am authorised to conduct litigation but unless specifically agreed I will not go on record and you will remain responsible for managing your own case (monitoring and meeting deadlines, sending and receiving documents and so on).
It is also worth repeating that a direct access barrister cannot guarantee to be available to deal with a case at short notice and cannot guarantee to be available for specific hearings where the date is not known in advance. Unlike the relationship a client would have with a solicitor (where you are dealing with a firm), a self-employed barrister is an individual and the client’s relationship is with the individual barrister – if the barrister is not available then there will be nobody else to step in.