1. What is a barrister?
Barristers and solicitors are all lawyers – they are just different types of lawyers. One is not better, more experienced or more senior than the other, but they have quite different training and expertise and do different types of legal work. The legal system in England & Wales is a “split” system, where there is a division of labour between these two types of lawyers. In some countries (such as in the U.S.A.) there is a “fused” system where all lawyers can (potentially) do all things, although of course they will still tend to specialise. Although in other countries “Counsel” just means “lawyer”, in England and Wales it is used to refer to a “barrister”.
So, what makes a barrister different from other kinds of lawyers?
In a nutshell, a barrister is a specialist advocate (advocacy is the skill of representing a client in court by asking witnesses questions, making speeches etc) – although some solicitors are also advocates, they still do a whole load of other stuff as part of their job, whereas barristers do pretty much wall to wall advocacy.
In addition to advocacy skills, a barrister is often called in to advise on the law in their particular area of expertise.
There are only two ranks of barrister : Junior Counsel and Senior Counsel (also called “Silks” or “Queen’s Counsel”). Senior Counsel have the initials Q.C. after their name. Only a small proportion of barristers will become QCs, so many Junior barristers are actually quite senior / expert. So I’m a “junior barrister” but I’m “thirteen years call”, which is barrister-speak for “I’ve been doing the job for thirteen years”. So, if you want to know how experienced a barrister is look for their year of call.
Barristers are usually self-employed. Solicitors are usually employed by a firm or a partner in a firm. Barristers aren’t allowed to form partnerships or companies (although there are some recent changes in the rules about this it will still be quite complicated and therefore unusual for barristers to form partnerships or companies). Instead barristers trade as sole traders, but group together for economy and marketing under one roof which is called a “chambers”.
Because barristers within one chambers are all independent from one another they can act on different sides in the same dispute, but solicitors in the same firm can’t because they aren’t independent and would have a conflict of interests.
So, barristers are by training specialist advocates, and in addition they often specialise in a particular area of law. Solicitors do also specialise, and some do their own advocacy, but most solicitors are litigators and legal advisors first. Solicitors are allowed to conduct litigation but barristers are usually not permitted to conduct litigation. In broad terms “conducting litigation” means : meeting the client, working out what the case is, sorting out the paperwork, communicating and negotiating with the other parties or their solicitors, advising a client, drawing up a settlement, and where necessary instructing a barrister to advise about the law or how the case should be handeld, or to go to court and represent the client on their behalf.
Barristers spend a lot of their time in court, talking to other barristers, dealing with witnesses giving evidence and addressing the Judge. Solicitors often come to court to support a barrister by taking a note or having the files to hand incase the barrister needs something. Increasingly often a barrister attends court without a solicitor. This is often more cost effective.
However, barristers specialising in some areas of law spend much of their time giving advice in complex legal matters which require highly specialised knowledge – and consequently aren’t so heavily court based.
Although in complex cases a barrister will be consulted throughout, a barrister is often instructed and paid by the piece of work, i.e. a) to attend for this hearing and b) to draft this document (although often this is a figure reached by reference to the amount of time spent). Solicitors usually bill by the hour, because they are responsible for the case and carry out work on the case as and when it is necessary. However in some areas of work, particularly family, more solicitors are beginning to offer fixed or capped price legal services, and to carry out work on an “unbundled” basis – this means that they charge an agreed amount for a specific piece of work but aren’t responsible for handling the case throughout.
Barristers are usually sent to court because its cheaper than sending a solicitor who bills by the hour, or because the barrister is more experienced at dealing with the court side of the process (or both). Because a barrister’s overheads are generally lower than for a solicitor’s firm it is often (but not always) cheaper to instruct a barrister to attend court than to send a solicitor.
There are two ways to instruct a barrister : the traditional route and the public access route. Traditionally a member of the public has to first instruct a solicitor as intermediary, who will instruct a barrister on their behalf – and the solicitor will generally take responsibility for who to select and when to call them in to assist, in consultation with the client. In this model the barrister has a lay client (that’s you) and a professional client (the solicitor). The barrister’s first duty is to the lay client (and that includes telling you if the solicitor has not done his job properly). The advantage of this model is that the case is managed throughout with the expertise of a barrister when required, but you only pay for a barrister if and when you need one. But you do still have to pay for the services of a solicitor throughout.
Public access (also called direct access or direct public access) is a relatively new scheme (around since 2004) which allows a member of the public to instruct a barrister directly – but a barrister can only deal with a case under this scheme where it is in the best interests of the client and usually only where the client is able to effectively act as their own solicitor i.e. to manage their case and paperwork.
A barrister will often (but not always) be involved with a case on and off throughout its life. However, because a barrister is usually briefed each time a specific piece of work needs to be done (a hearing, a piece of drafting), there might be different barristers dealing with a case, although the solicitor will remain responsible the whole way through. This is because a solicitor is retained by a client and is responsible for dealing with what comes up as it comes up, but a barrister cannot always be available for a client to attend a particular hearing because these dates are not known at the outset. If a barrister has been previously booked to do something else for another client on the date in question she will have to honour that commitment. A change of barrister is particularly likely in family cases where cases can return to court many times over a lengthy period.
Contrary to popular belief, both barristers and solicitors can become judges, although more judges have historically come from the bar than from the ranks of solicitors, and still do.
This summary describes the differences between barristers and solicitors in general terms, and some of the points do not apply in all cases, but they are generally representative of how the system works.
2. How can a barrister help me?
It is important to understand that, although there is some overlap, a barrister is not the same as a solicitor – and the work that a barrister can carry out for you via public access is not the same as a solicitor’s role.
What I can do:
Advise you, represent you and draft documents.
I can advise you at any stage – even if you are not involved in a court case you may just want to know where you stand or what your options are. If you are going through a court process you may need help working out what steps to take or advice on how strong your case is.
What I can’t do:
I can’t “conduct litigation”. This means I can’t:
- send correspondence on your behalf (but I can draft it for you to send),
- issue applications or send documents to the court or the other party (but I can advise you what application to issue and what to put in the form, and I can send the court any document I prepare as part of my representing you at a hearing for example a skeleton argument),
- instruct an expert on your behalf,
- engage in direct communication with your ex’s solicitor or the other party (except at court, or to sort out practical things related to a particular hearing).
I also can’t guarantee to be available to deal with your case at short notice. I have other cases to deal with and if I am at court or preparing for a hearing that must take priority – whereas a solicitor based in a firm will have colleagues who can handle a case in their absence I am a sole trader, and the lawyer : client relationship is between you and I, not between you and my chambers. If you approach me at short notice to advise you on a problem that has cropped up and I am available I may be able to assist, but under public access I usually only agree to do a specific piece of work with a known deadline or fixture.
Meeting with deadlines, sorting out the nuts and bolts and complying with directions of the court is always YOUR responsibility.
There is more detail about all of this in the Bar Standards Board Guidance and client care letters.
3. Can YOU help me?
- Old Skool: If you instruct a solicitor you can ask them in turn to instruct me to assist with the case. They will run the case but might ask me to draft a document, to meet with you both to give you some advice, or to represent you at court.
- You can instruct me directly through public access. Some family cases aren’t suitable for public access, so I need to know a bit about your circumstances before I can confirm that I can help, but this website should give you a rough idea of the kinds of things I can potentially help with.
I am a family barrister and my specialism is children work. I deal regularly with a wide range of children matters, such as contact and residence (now called “child arrangements”), applications to take a child abroad to stay or live, parental responsibility, domestic violence injunctions. I am able to accept public access instructions in all these areas, and also in connection with financial remedies after divorce. I also act frequently in care proceedings (where social services apply to court about a child), for various different parties. I would consider accepting instructions in care cases for parties who are not eligible for public funding, for example for extended family members who wish to become involved in proceedings so they can care for a child, or individuals who have been invited to intervene in care proceedings because they are accused of injuring a child. This is intended as general guidance only – I have to assess each case as suitable before accepting instructions.
Under public access I can advise you in writing or in conference (usually a face to face meeting, but also through skype or phonecall) and I can represent you at a hearing. But I can’t do all the things a solicitor would do, and in particular I can’t run your case from end to end as a solicitor might.
4. What will it cost?
Can you advise for free?
I get asked this a lot, and I think it’s best to be clear from the off : although I do a certain amount of work for free each year, I do not carry out unpaid work except through a recognised pro bono scheme such as Advocate or the Bristol Pro Bono Scheme – so please do not ask. I do not charge for enquiries, but you do need to be able to pay for my services if instructed, as I cannot afford to work for free on your case (this is how I pay my bills). Making an enquiry in the hope I will offer a freebie is a waste of your time and mine. If you have no funds to pay for legal advice or representation I’ve suggested some other sources of support here. PLEASE SEE MY COSTS PAGE HERE FOR MORE INFO.
Alright, but what sort of figure are we talking about?
As to how much – well, it depends on what you want me to do! Every case is different so I can’t tell you what I will charge until I know what your case is about and what you need me to do. But I can tell you how I charge.
I will try to be clear with you about cost so you know what you are spending, but the following things will effect how much I will need to charge you:
- How much paperwork is there for me to read? Just sending me a small selection of the most important documents sounds like a great way to save money but actually you are paying me to give you good advice and to do that I almost always need to read everything.
- How complicated is the case? Sometimes cases with masses of paperwork are straightforward and cases with little to read are really complex.
- What do you want me to do? You might want me to advise you in writing about a particular point or about the case in general. You might want me to meet with you and advise face to face. You might want me to draft documents or to represent you at court.
- How much time will it take me to prepare? I need to read the documents, look up any legal points, think about the case and prepare questions and arguments.
- How long will the hearing take? Often a hearing listed for 30 minutes can take up a whole day by the time you factor in travel and discussions at court, waiting at court and the hearing itself.
- Distance – how long will it take me to get to court or to a meeting with you, what will the travel (and accommodation) costs be?
In general I will try to assess the case at the start and give you a single or maximum fee to cover the work you are asking me to do, rather than an hourly rate. I will base the figure on roughly how long I estimate I will need to spend on the case. Sometimes it is not possible to fix a fee because the work is rather unpredictable and if this is the case I will say so.
If I think that it is likely to be more cost effective to go via solicitors I will say so (cost effective is not the same as cheaper).
If I think that it might be cheaper for you to instruct a barrister or solicitor nearer to where you live I will say so.
I will not start work until I have cleared funds.
There is no legal aid available to pay for public access work, but if I think you might be eligible for legal aid if you were to instruct a solicitor I will say so. It will be up to you to check that out.
In fact, even if you did instruct a solicitor in a dispute about children, legal aid is usually unavailable. You might qualify for legal aid if you are on low income, have been the victim of domestic abuse (and can provide evidence) or if you are seeking the help of the court to protect a child from abuse (and can provide evidence) and have a strong enough case – there is more information on the Justice website about when funding via solicitors is and is not available.
If you do find you qualify for legal aid, even though you can’t instruct me directly, you could ask your solicitor to instruct me to represent you.
Other sources of funding
Have you thought about whether your home insurance policy might have legal expenses insurance cover that would pay for some legal advice?
Are you a member of a trade union through which you might be able to access legal advice?
5. What information will I need to provide?
I will need the names of all the people involved in the case including the children (or if there isn’t a case in court yet the person you are in dispute with – usually your ex), so that I can check that there is no conflict of interests (for example if I have acted for any of the other people in the case in the past then I can’t now act for you).
I will need to know any future hearing dates : when, where, how long they are listed for, what type of hearing is it? Also any hearing which has been listed but which you haven’t yet received a date for.
I will need to know what the dispute is about (contact, living arrangements, something else), and what has happened so far in the case.
I will need a realistic summary of what your position is and what the other people in the case say about you (even if what they say isn’t true).
I will need everything in the court bundle if there is one, and if not I will need all of the following :
- Any applications
- All the court orders, particularly the most recent
- Any transcript of a judgment in your case that the court has ordered to be produced
- Any recent witness statements or position statements
- Any reports from CAFCASS, a social worker, an expert or other professional
- Any recent correspondence that deals with an issue you want me to consider
If you have instructed a solicitor before you can ask them to send a copy of the papers to you or to me (although if you owe them money they are entitled to refuse to release them).
I will need you to tell me what you want me to do, for example:
- Represent you at court?
- Advise you about your position:
- after reading the papers?
- or after meeting with you in person?
- Draft a document for you : a position statement or skeleton argument, some correspondence or an application or appeal?
I will need you to provide some photographic ID such as driving licence or passport so that I can verify your identity for the purposes of the Money Laundering Regulations 2007 (just as you would have to do to instruct a solicitor or open a new bank account).
A few words about timing
One drawback of instructing a barrister under public access is that you are instructing an individual not a firm, and because most family barristers are in court every day they may be unable to deal with urgent crises or enquiries. Public access is generally better suited to non urgent matters or to representation on a fixed date.
If you want to instruct me (or any other barrister) directly to represent you at a hearing you will need to allow enough time between contacting me and the hearing date to check that the case is suitable for direct access – I will usually need to read some of the papers before I confirm I can act for you. You will need to be able to get the papers to me, agree a fee with my clerks, make payment and I will need time to read and consider the papers (in between my other diary commitments), clarify any issues with you by phone or email, estimate the time I will need to spend on the case and how much I think it will cost, and send a client care letter for you to return signed. I will also need time to read and prepare the case and draft any documents prior to the hearing. This is the stuff a solicitor will usually sort out on your behalf, and whilst it doesn’t take them long to do because they know what information a barrister needs, it does require good organization and time management from you.
All of this needs to be done before the hearing date so making an enquiry the day before won’t work. Ideally you need to allow at least two weeks between first enquiry and hearing date, but you should make contact as soon as you think you want to instruct me, even if you don’t have a hearing date fixed yet. My diary changes all the time and is often booked up months in advance. The sooner you make an enquiry the better the chances are of getting the barrister of your choice.
If I am not available on the day of your hearing the clerks at my chambers might suggest another barrister there who can help. Don’t forget that this website is about how I deal with direct access enquiries – other barristers may run things a bit differently to me.
If you are considering appeal remember that there are time limits for appealing. If you want my advice or assistance you need to move fast – and make clear that the matter is urgent.
6. What is an 'Advice'?
- In conference
- In writing
- At court (before and at a hearing)
I will read the papers and arrange a meeting with you so that I can give you my professional opinion and advice about things like :
- what the legal issues are in your case
- your prospects of success
- what courses of action are open to you
- what steps you need to take
- what arguments might be made by you or on your behalf.
Obviously, the things I advise you on will depend on what you ask me to look at.
A conference could take place face to face or by telephone or skype. The advantage of this form of advice is that we can talk through different scenarios and I can check I have understood things properly and ask about anything that is unclear before confirming my opinion.
Usually I will summarise what we have discussed in a brief note or email shortly after the conference.
I will read the papers and ask you to clarify any points I don’t understand by email or by phone and I will provide you with a written document setting out my professional opinion and advice to you about the same things I’ve mentioned above.
The advantage of this form of advice is that it is clearly set out for you in writing so you don’t have to take notes or worry about forgetting what I’ve said – and we do not have to try and fit a meeting in around your availability and my court commitments.
Whenever I represent a client at court I arrive at court at least 30 minutes before the hearing is due to start so that we can talk through the approach, confirm instructions and so that I can advise on any proposals made by the other party. Usually if I am representing you under direct access I will have spoken to you by phone before the day of the hearing anyway.
Sometimes I’m asked if I can just give a “quick” advice without spending too long going through the papers. I work on the basis that if I am going to give you my advice I will do it properly. This usually means I need all the papers before I can advise you and you will need to be prepared to pay a figure that takes into account the time it will take me to read them properly, to think about them and to write or give my advice. If I find once I’ve started to read that I don’t need to read all the papers I won’t charge you for it, but I won’t give advice until I am sure I properly understand the case. If I did I would risk getting it wrong.
7. OK How do I go about instructing you?
If there is a hearing in the near future it is a good idea to ringing the first instance to establish whether or not I am available on the date of your hearing – if I am not then there is not much point in filling in the form, and the clerks may be able to suggest someone else who is available.