This Guidance was revised in May 2018. The law or procedure may have changed since that time and members should check the up-to-date position.
When the relationship between the lawyer and barrister is good, the results can be very positive. The client may benefit from early specialist advice. Issues can be resolved at an earlier stage than may otherwise have been the case. Equally, if it is necessary to go to court, the client benefits from having two lawyers with different skillsets involved in the preparation for the hearing and (if the lawyer is also at court) during the hearing itself. Clients engaged in the collaborative process can also often benefit from the involvement of a collaboratively trained barrister (usually known as ‘collaborative counsel’).
In recent years, there has been a marked shift in emphasis in the way that specialist family lawyers and barristers work together for the benefit of the client. However, there remain practitioners from both branches of the profession who are unsure of the reasonable expectations that each may have of the other. With a view to improving the working relationship between the family lawyer and barristers, this guide deals with the following issues:
- What are the respective roles of the family lawyer and barrister?
- When should a barrister be instructed?
- The selection of a barrister for a particular court or collaborative case.
- How should the barrister of choice be instructed?
- Managing communication between barrister and lawyer.
- Managing conferences.
- Specific issues of good practice in applications for financial orders.
- Preparation for hearing and papers for consideration.
- The hearing.
What are the respective roles of the family lawyer and barrister?
The lawyer is entitled to expect that the barrister will:
- Provide the client with independent, objective legal advice, and draft documentation where necessary in good time and, if instructed in connection with court proceedings, represent the client in court; and
- Operate as a team player with the lawyer, client and any other person involved with the proceedings.
The barrister is entitled to expect that the lawyer will:
- Select the appropriate barrister for the client and wherever possible provide instructions/the brief in good time.
- Ensure that the client understands:
- the respective roles of the barrister and the lawyer;
- that each has duties to the court and (if relevant) to the Legal Aid Agency that may have to take precedence over the client’s aims and wishes; and
- the likely nature, purpose and objectives of hearings, conferences and any collaborative meeting in which collaborative counsel is involved.
- Filter and focus information for the barrister.
- Manage the paperwork, i.e. ensuring it is easily located and identified and selecting the appropriate documentation to be provided to the barrister.
- Define the issues, either alone or in conjunction with the barrister.
- Ensure that the client fully understands the advice and/or the issues discussed in conference.
- Prepare and file documentation and compile and provide bundles for any court proceedings in good time with input from the barrister as may be appropriate.
- Take such other steps to promote and protect the client’s interests and ensure the effective presentation of their case as may be appropriate, taking into account the barrister’s advice.
- Support the client and provide an interface between the client and barrister throughout the proceedings.
When should a barrister be instructed?
It will not always be necessary for a barrister to be instructed. The decision to instruct should be considered carefully and discussed with the client. For example, it may be that the complexity of an application for a financial order requires an opinion from a barrister as to the likely outcome or that there is a particular technical issue which would benefit from the specialist advice that a barrister can provide. Equally, it may be more appropriate for a barrister to undertake the advocacy at a particular court hearing for a wide variety of reasons.
When a barrister is to be instructed for a hearing where the date is already known the booking should be made as soon as possible. This helps ensure the preferred barrister’s availability or gives the best chance of identifying a suitable alternative if not. If the date of the hearing is yet to be fixed the lawyer should endeavour to fix the date as early as possible in conjunction with the barrister’s clerk and the court’s list office.
If the lawyer considers that a conference with the barrister may be required in advance of the hearing consideration should be given to arranging this at the same time as the hearing with (should this be the case) the barrister’s clerk being advised at the time that it is arranged that it may in fact not be required. It is almost always easier for a conference to be taken out of a barrister’s diary than it is for a conference to be booked at short notice.
Instructions should also be given in good time so that the barrister’s early advice on tactics, steps to be taken, and prospects of settlement can be acted upon.
Once a barrister has been instructed for a particular case, the lawyer should discuss with them (in public law children cases in particular) whether they should be instructed to attend significant directions hearings. Account should also be taken of the expectation under the Family Procedure Rules 2010 PD9A para 6.5 that the legal representatives attending the first appointment and the FDR appointment in financial remedy (or similar) cases will be expected to have full knowledge of the case. The lawyer should therefore consider who is the most appropriate advocate to attend. Where a barrister has been instructed, it may therefore be necessary for them to attend these appointments (although a number of specialist lawyers prefer for cost and other reasons to attend themselves without a barrister).
Barristers are also instructed in the collaborative process (usually, but not necessarily on a joint basis) for a number of reasons including (i) the provision of legal advice; (ii) to draft questions for/ask questions orally of a jointly instructed expert such as a forensic accountant or surveyor; (iii) to draft consent orders or pre-nuptial/pre-civil partnership agreements; and (iv) to act in a quasi-FDR judicial capacity.
The selection of a barrister for a particular court or collaborative case
The careful selection of a barrister is critical to the success of the team representing the client. It is a legal services contract requirement that family lawyers undertaking such work retain a preferred list of barristers that is regularly updated to record the particular strengths and weaknesses of individual barristers. Less experienced lawyers, or those who are new to a geographical area, will often find that experienced local Resolution members will be pleased to assist them in identifying a barrister appropriate to a particular case.
The personality of both the lawyer and client and the dynamics of their relationship will be important factors in the decision to instruct a particular barrister. The seniority of the barrister will also be relevant. It is advisable to enquire of the lawyer representing the other party to the case whether they have instructed a barrister and, if so, whom – it may be they work particularly effectively with another barrister in searching for an equitable, constructive and non-confrontational solution to cases.
Sometimes when a lawyer seeks to book a barrister for a particular hearing (or when a barrister is put forward by their clerk for that hearing) they may already be instructed to appear at the same court for a different client on that date. It is good practice for the lawyer to check with the barrister’s clerk whether this is the case as whilst it may be unavoidable for legal aid cases it may not be preferable for privately paying cases and the client (unless they are aware in advance and expressly consent) may not be happy to be represented by someone also instructed that day on another case. Being booked for two cases in this way can also cause problems for the barrister if the hearings are in different courtrooms and both are called on at the same or similar times.
Consideration will sometimes need to be given to the instruction of leading counsel (QC). This will often be the case in weighty public law Children Act cases. It may also be appropriate to instruct a leader if there are jurisdictional issues or on a complex application for a financial order. It is a fairly recent trend at the bar for there to be more flexibility in the role that leading counsel are prepared to play in a particular case. For example, for a heavy application for a financial order that is neither the most complex nor most paper-intensive case, the leader may well be prepared to represent the client without the necessity for the addition of a junior barrister. The barrister’s clerk should be content to discuss issues of this nature with the lawyer to ensure that the client’s representation is tailored to their case.
How should the barrister of choice be instructed?
Instructions should always be provided to the barrister sufficiently in advance of the court hearing, conference or collaborative meeting to which they refer so that the barrister has time to prepare fully and call for any additional papers or information that may assist them in advising in conference/meeting.
It should be remembered that the barrister may be in court each day, sometimes some distance away from chambers, and that these commitments reduce the time available for preparing cases. Where last minute instructions have to be given, it is advisable to contact the barrister’s clerk before dispatching the papers in order to check whether it is most efficient to send papers to chambers or whether another arrangement would be more effective.
It is usually preferable for instructions to be provided by way of a hard copy (or a hard copy sent subsequently if instructions and enclosures are first sent by email). Care should always be taken with instructions and enclosures sent by email as it is easy for attachments to be overlooked particularly if an email (with or without attachments) is embedded in another email. Care should also be taken to ensure that attachments to emails are not too large as this risks the email not being delivered (of which the recipient will not be aware). If time permits covering emails should therefore always list the attachments thereto so that the barrister (or their clerk) can check all emails and attachments have been received and ensure (if appropriate) that all have been fully printed out. It also assists for the same reason (and also alerts the recipient that an email has not been received) if multiple emails are headed ‘Email 1 of x’ (or similar).
A conversation with the barrister’s clerk is always helpful to determine how the barrister wishes to receive papers.
The barrister and clerk should be aware that it is not appropriate to accept instructions on the barrister’s behalf if it is known that they will have insufficient time to prepare properly for a conference, meeting or hearing. If it becomes apparent that, because of unforeseen circumstances, the barrister will have difficulty in fulfilling commitments with regard to a case, including insufficient time to prepare fully for a conference, meeting or hearing, the lawyer should be informed of this at the very earliest opportunity.
It is considered unproductive, unprofessional and short-sighted of the clerk to accept work for a barrister that cannot be done properly and in good time.
The contents of instructions – basic information
Certain basic information should always be included in instructions to the barrister, in particular:
- The party for whom you are acting.
- The ages of the parties and their children.
- The form the proceedings take (for example, an application for a child arrangements order under the Children Act).
- A statement of the current issues.
- Identification of what advice or action is required and/or if there are specific questions that the lawyer wishes to have answered.
- Where attendance at a court hearing is required, full details of the time and venue should be included in a prominent place on the papers, preferably where the barrister’s clerk can readily find them.
- It is helpful if the instructions provide the contact details of the instructing lawyer, including the telephone number (including mobile if there is a possibility that the barrister may need to contact the lawyer during the evening and/or weekend), e-mail address and the name of the particular lawyer with conduct, as the covering letter that should also record this information is sometimes retained by the barrister’s clerk, or mislaid.
- Care should be taken to confine the papers sent to the barrister to those which are relevant to the current issue(s), or strictly necessary for background reading. Documents should not be sent to the barrister if it is not expected that they should read them.
- If the papers are extensive and there are specific documents that the lawyer wishes the barrister to read these should be clearly identified in the instructions. This is of particular importance if the papers are only sent to the barrister shortly before the conference or hearing.
- The lawyer should ensure that there is adequate and clear information regarding fees/funding arrangements, which may be achieved by a reference on the brief and/or in the covering letter or by way of separate communication with the barrister’s clerk.
- If advice from the barrister or other steps are required as a matter of urgency upon receipt of the instructions/brief this should be highlighted both in the body of the instructions/brief and in the covering letter.
The barrister’s role is not that of a filing clerk. Documents included in the instructions or brief should be identified and their relevance to the case explained unless it is self-evident. This can be done either in the instructions or in the index.
No originals should be submitted to the barrister except by express prior agreement (for example, where they are exceptionally bulky or cannot be copied).
Papers should always be sorted logically in chronological order and in separate, clearly indexed bundles including:
- Applications and orders.
- Experts’ reports section.
- Notes of advice given previously to the client, whether by the lawyer or by the barrister, notes of conferences and hearings, and letters and attendance notes setting out advice given to the client by the lawyer. In this way, the barrister can be alert to the advice that has been given to the client to date and the need to explain to the client any actual or apparent changes of advice or differences of opinion. The barrister will also be assisted in recognising those cases where a client has particular difficulty in understanding advice or may unreasonably be refusing to accept it.
- Attendance notes taken by the lawyer of important meetings, e.g. proofs of evidence.
- Party and party correspondence.
- Schedule of assets.
- Child support calculation, where relevant.
- A copy of the Legal Aid Agency certificate if appropriate (and of the notice of the other parties’ equivalent certificate if appropriate) should be enclosed. The barrister should be informed of any subsequent amendment to the certificate and provided with legible copies of the relevant documents. If not clearly legible, transcripts of hand-written documents should be provided.
- A costs schedule or statement of the costs incurred to date, the amount paid and any costs outstanding.
All documents should be tethered in some way but not permanently; ring binders are preferable to more elaborate binding systems though they need to be packed carefully for despatch to the barrister in order to avoid damage in the mail or DX system. Overfilling ring binders should be avoided as this increases the likelihood of such damage.
It can assist the barrister to make a realistic assessment of the case if the instructions explain any difficulties that the lawyer has identified with regard to the client or potential witnesses, for example unwillingness to give evidence, difficulty in recalling events or extreme nervousness. The barrister should be made aware of any specific language problems, disabilities or cultural issues which are relevant to the case. Solicitors should always be mindful that such instructions may come to be released to the client.
If the instructions are to advise in conference at the barrister’s chambers or if it is requested that the barrister meets the client in chambers before a court hearing then any access issues (for example the need to make a ground floor conference room available) should be highlighted both in the instructions/brief and in the covering letter.
Managing communication between barrister, lawyer and client
- The vast majority of barristers welcome direct contact with the lawyer outside conferences, meetings or court hearings. The barrister will need to be informed of important recent developments as they occur and communicating by telephone or email is the quickest way of achieving this. If the barrister is asked to advise over the telephone it is good practice to ask them to provide a short note of the advice given or to follow it up with your own attendance note of the call to ensure that you have fully understood what is being said. If you are in any doubt about how best to communicate with the barrister outside a conference, meeting or court hearing, ask them.
- For the client, counsel’s bedside manner and attitude to the other people concerned with the case are often as important as intellectual ability. For example, at a hearing, whilst the outcome is likely to be of great importance to the client, the way the case is conducted can be equally or even more important in terms of enabling that client to accept the decision and maintaining or even promoting positive long-term continuing family relationships.
- The lawyer and the barrister should speak plain English to the client. Language should be adapted to the needs/understanding of the client. The lawyer and barrister should ensure that any technical exchanges between them are ‘translated’ for the benefit of the client.
- It must be remembered that it is the client’s case and they should not be made to feel excluded, patronised or bewildered.
- The lawyer should ensure that the client has understood the key points of the barrister’s advice and of any hearing that may have taken place. A written summary of the conference, the advice given in a collaborative meeting, and of the outcome of the hearing should be prepared for the client. The barrister should be provided with a copy of the summary and of any order that the court has made.
- There may be situations, hopefully rare, in which there has been little time for the barrister to consider the papers properly in advance of a conference, for example where essential material has only just been made available. Where this happens, the lawyer and barrister should explain the circumstances to the client and it should be understood that the best course may be for the barrister to take further time to reflect upon the issues before advising and, if necessary, re-arrange the conference. The barrister’s advice should, of course, be given within a reasonable period thereafter and the client advised of the likely time for receiving it.
- In appropriate children cases, it is appreciated that children’s guardians welcome the opportunity to be included in all aspects of the case, but it is undesirable for this to include guardians joining legal representatives in the robing room/advocates’ room. There are also certain negotiations/drafting exercises that are more appropriately carried out in the absence of guardians.
- Whilst there may be occasions when the lawyer or barrister considers the other’s conduct of the case is open to criticism or they differ in their opinions as to the case, each must be mindful of the need not to undermine the client’s confidence in any of their legal advisers at a time when the client may well already be under great stress. Care should be taken that the matter is raised sensitively and ensuring that professional objectivity and respect for everyone involved is retained. The lawyers should try to discuss the matter in private first. However, it should be recognised that the duty to the client overrides the duty to the lawyer/barrister.
- The barrister should not depart from the advice given in conference as a final court hearing approaches without good reason and without explaining to the lawyer in advance, save in very exceptional circumstances.
- The barrister should stay within the parameters of settlement given by the client when negotiating with the other party’s representatives.
- Neither the barrister nor the lawyer should criticise the other lawyer/barrister in the case in conference or in court unless it is essential to the conduct of the case. Should it be necessary to make such a criticism in court, wherever possible this should be specifically discussed and agreed with the lawyer and, where appropriate, also with the client beforehand.
- In an ongoing case of some weight it may be prudent for the lawyer and barrister to keep each other aware of any prolonged absence from the office or chambers.
- Every attempt should be made to arrange conferences at times and locations that are convenient to all those who will be attending. It is helpful if an estimate can be made in advance of how long the conference will take and consideration given to who will be attending. If this is not straightforward, the lawyer should speak with the barrister about it, raising issues such as the desirability/propriety of the client’s family or friends attending and whether it is appropriate for work experience students to be present.
- Conferences need not always be held in chambers and it may be better, in some cases, for the barrister to attend at the lawyer’s office. Other possible venues include the professional address of an expert witness (such as an accountant or doctor) or even the client’s business premises if there are substantial business records that are material to the case. If a central dispute in a financial remedy case is whether the client will be able to retain their home it can be very advantageous for the barrister to see the property. Full and early consultation with the barrister’s clerk should enable the most convenient arrangements to be made.
- Shortly prior to the conference and once the barrister has fully read the papers, the barrister and instructing lawyer should speak briefly to ensure that the barrister is fully up to date with any material matters that have arisen since delivery of the papers or so that the barrister and lawyer can raise with each other any particularly significant issues of concern in relation to the case or its conduct. This can avoid unnecessary surprises in conference both for the client and their advisers.
- Provided that it is practical and cost effective, the lawyer with conduct of the case or a representative from their firm who has a working knowledge of the file should attend the conference. If this is not possible, the barrister should be told as far in advance as is possible in order to avoid embarrassment and to ensure that any material issues can be discussed between the lawyer and barrister by telephone or raised by letter prior to the conference. Alternatively, the lawyer should endeavour to be available so that the barrister can telephone them during the conference should the need arise.
- The barrister should not give the impression that their attention is engaged elsewhere, for example by over-using computers during a conference. The barrister can be expected to be aware of the need for the conference to be conducted in such a way that the client is confident that their case is of importance to the barrister. The client should feel able to tell the barrister everything that may be material to the issues and to ask for clarification if they have not understood fully what is being said. Interruptions or distractions during the conference can be off-putting for clients and damage their confidence in the barrister.
- References by the barrister to the fact that the papers were being studied late the night before do not inspire confidence in the client. It is important for the barrister to convey to the client that they have studied the papers and have a sound grasp of the facts and issues, for example knowing the names of not only the client but also the relevant family members. How this is done will vary from barrister to barrister and will depend on the circumstances of the case. The care that the barrister has taken can be revealed by their advance preparation of documents such as a schedule of assets, a chronology, a statement of issues or an agenda for the conference.
- The barrister should provide instructing lawyers with copies of notes for the conference, any authorities which are referred to, and any schedules or other spreadsheets that have been prepared, either before or during the conference. If possible, this information should be made available to instructing lawyers before the conference. It is often of assistance for the barrister to provide soft copies of such documents by email after the conference.
- Both lawyer and barrister should remain alert to the client’s understanding of the advice given/issues discussed and be prepared to repeat tactfully if necessary.
Specific issues of good practice in applications for a financial order
- Work should be commenced at an early stage on a schedule of assets, which needs to include valuations of all significant assets. The barrister’s instructions should include a copy of the schedule, identifying where agreement has been reached and, where agreement has not been reached, setting out the precise nature of the disagreement.
- Where clear agreement has been reached about particular assets (for example, as to the valuation or division thereof between the parties), it may not be necessary to send the barrister all the paperwork that underlies that agreement. This question needs to be given individual attention in each case.
- Where the barrister is to be sent documents regarding a particular asset, consideration should be given as to whether it is necessary to send historical documents. For example, an outdated valuation of an endowment policy may be relevant where it relates to a significant moment in the history of the marriage (for example the date of separation) but it may otherwise be unnecessary paperwork.
- If both voluntary Forms E and court-directed Forms E have been completed and there is little material difference between the two it may not be necessary to send the barrister the voluntary Forms E (or at least the enclosures thereto).
- Where child support is material, a CMS child support calculation should be included with the instructions wherever possible. If it is not clear from the assessment itself, the input figures (such as income and number of overnight stays) should be provided separately.
- It is essential for the barrister to be provided with as much information as possible about proposed experts (availability, area of expertise, etc.) prior to the first appointment, first hearing dispute resolution appointment, or any other directions hearing at which the issue is likely to arise. This information is required for a FPR 2010 Part 25 application in any event.
- An estimate of costs to date needs to be provided to the barrister at all stages. This always needs to identify what payments on account the client has already made and, in some cases, it is necessary to tell the barrister from which fund the client has drawn the money paid.
Preparation for hearing and papers for consideration
The lawyer’s role
- The lawyer owes it to their client and to the barrister to prepare for all court hearings in good time. Whenever a barrister is to be instructed for a hearing, this should be done sufficiently far in advance to allow time for the barrister to consider the issues and advise, for the barrister to settle any papers necessary for the hearing, for negotiations then to take place with a view to settlement, and for any agreed order to be drawn up and forwarded to the court. The lawyer should ask the barrister who will be acting to advise on settlement in sufficient time to allow negotiations to take place.
- The preparation of a bundle (which can ultimately be used for the court hearing) should be begun as soon as possible. This applies to small cases just as much as big ones. The barrister may wish to give advice as to the content of the bundle – in weighty cases this is advisable. FPR 2010 PD27A paras. 4.1 and 4.2 provide guidance as to what a court bundle is (and is not) to contain and how documents should be arranged. The format of the bundle (including the limitation to 350 pages) is set out at para. 5.
- The lawyer and barrister should discuss and agree at the earliest stage which of them will take responsibility for the drafting and filing of first appointment documents (in the case of an application for a financial order) and of the preliminary documents that must be included in the bundle (see paras 4.3 – 4.6 inclusive of PD27A). The barrister will usually wish to prepare the skeleton arguments unless it is agreed that the lawyer should be responsible, but responsibility for the drafting should be clearly defined between barrister and lawyer.
- The court bundle should be ready no later than seven days before a hearing (para 6.2 of PD27A directs that the paginated bundle should be delivered to the barrister not less than three working days before the hearing) and preferably earlier to enable the barrister and any expert witnesses to adopt the appropriate pagination when preparing the case and when drafting documents for the court.
- Where a barrister has been instructed prior to the formal court bundle being prepared and is already in possession of documentation, the lawyer should ascertain whether the barrister prefers to make up and paginate their own bundle from existing documents; it should not be assumed that the barrister will do this. The barrister should be provided with a full copy of the paginated court bundle unless the matter has already been discussed and they have indicated otherwise.
- The lawyer should give specific instructions to the barrister on any points that might be material with regard to costs, particularly where they are not apparent from the hearing bundle, as may be the case, for example, where they arise from correspondence or from the preparatory handling of the matter.
The barrister’s role
- The barrister should prepare thoroughly for the hearing, bearing in mind the need to allow the lawyer time to obtain instructions, to gather evidence, and to make final preparations in the light of any advice that the barrister may give when they have read the brief.
- The barrister should avoid giving ‘conditional’ or ‘preliminary’ advice when having the full papers (i.e. requesting documents/information that would be available to the lawyer) could have allowed complete advice.
- In the event that the barrister considers significant information/documentation to be missing from the papers, the barrister should contact the lawyer to ascertain whether it can be made available within a reasonable period of time, rather than simply returning the papers with a ‘conditional’ or ‘preliminary’ advice.
The lawyer’s role
- The lawyer with conduct of the case should, if possible, attend the court hearing and be present for negotiations at the door of the court. Whilst this will not always be practical or cost effective, the lawyer’s representative should have a working knowledge of the case and the relevant issues. In addition, it is often helpful, if the lawyer with conduct cannot be present, for them to discuss the case with the barrister by telephone and be available on the telephone during hearings.
- The lawyer should take a contemporaneous note of any pre-hearing conference, of any negotiations, and a note of the hearing itself. This is particularly useful if oral evidence is given as it is difficult (if not impossible) for a barrister to take a full note of evidence at the same time as asking questions in examination-in-chief or cross-examination.
The barrister’s role
- The lawyer with conduct of the case should discuss with the barrister in advance whether they wish to be present during any negotiations outside the court room. In the event that the barrister considers this to be unproductive in the particular circumstances of the case, they should explain the reasons for their view to the lawyer and discuss it with them.
- The barrister should keep the client and the lawyer informed of what is said in any material discussions with the other advocates.
- The barrister should see the judge in private concerning the case only if requested to do so by the judge or if the client agrees and, in any event, inform the client and the lawyer of what is said to the extent permitted by the judge.
- The barrister should not permit familiarity with another advocate to undermine the client’s confidence in the barrister’s commitment to present their case effectively.
- The barrister should be receptive to receiving instructions and comments during the course of the hearing. However, the need for the barrister to be able to consider what a witness, another advocate, or the judge is saying must be respected. The lawyer (or their representative) is responsible for maintaining the balance.
- The matter of costs should be discussed in advance so that the client, lawyer and barrister are aware of the issues around whether costs orders are likely to be sought. The barrister should be prepared to argue any reasonable issue relating to costs. If any aspect of costs is not reasonably arguable, wherever possible that should be explained by the barrister and understood before the matter is addressed in court.
- Particularly in financial remedy cases, the barrister should be conscious of the fact that costs are not only emotive to the client but also potentially very significant financially. Therefore the barrister should not capitulate too quickly if there should be any costs arguments at the end of the hearing, and should give enough time and attention to this issue.
- The barrister should be prepared to spend time with the client at the end of the case, especially if the outcome was disappointing.
- The barrister should inform the lawyer promptly after the hearing of the agreement reached or order made, either by email or by telephone, if there was no representative of the lawyer there.
- The barrister should be aware of the emotional needs of the client during the hearing and/or negotiations.
- In the often highly charged negotiations at the court door, the lawyer and barrister
- should work together to ensure that the client feels, and will continue to feel, in control of any agreement reached and fully understands its terms and implications.
In privately funded cases (as opposed to publicly funded cases where the fixed scale of graduated fees applies) there can be advance discussion between the lawyer and barrister’s clerk about fees or charging rates so that:
- Information as to the cost of instructing the barrister can be made available to the client and, because this aspect of charging differs from the way that solicitors’ time is charged for, the client should be made aware that barristers’ fees will often be incurred in advance of the work being carried out (the concept of ‘deemed’ brief fees and/or when briefs for court hearings are delivered). Ideally this information will be secured well in advance and shared with the client so that informed decisions can be made as regards settlement. It may also be appropriate to share this information with the other side for reasons relating to costs applications.
- Where the client is paying privately, the lawyer can ensure that they have appropriate security for the barrister’s fees by requesting a payment on account prior to instruction.
- Instructions can be withdrawn from the barrister or declined, without compromising the ability of another advocate to prepare the case in time, if the fee to be charged or offered is considered to be unreasonable.
- The liability so far incurred for fees can be readily ascertained at any stage in the case, for example where information as to costs is required for a court hearing or where an unavoidable change of barrister occurs.
- Some chambers will charge for cancellation of their barristers, particularly if a brief ‘deeming’ date has passed before the hearing is taken out of the barrister’s diary. If this is to be the case, it is sensible to make a note of the relevant dates and the client should be informed of any such dates well in advance.
- Whether or not there is a ‘deeming’ date if a hearing is no longer effective for whatever reason it is good practice to inform the barrister’s clerk as soon as possible so that the barrister can be made available for other work. If there is a meaningful possibility that a forthcoming hearing may not be effective, it is again good practice to make the barrister’s clerk aware of this and to keep them updated in this regard.
The lawyer owes a duty to their client to ensure that the barrister’s fees are fair and reasonable and to negotiate where appropriate. The lawyer should seek the client’s approval before concluding an agreement as to fees.
Where an estimate of fees has been given by the barrister or on the barrister’s behalf by their clerk, they should alert the lawyer if it appears likely that the estimate will be exceeded, for example because of the complexity of the matter or developments in the case.
Where no prior agreement has been reached as to the barrister’s fee for advising or drafting documents, the lawyer should not be afraid to challenge the clerk about the level of fee charged if it appears unreasonable in proportion to the issues involved and to the likely level of preparation time required.
The barrister should be prepared to justify any fee charged by reference to such factors as the time spent and the importance/complexity of the issues involved. It is helpful if a breakdown of the time spent is included on or accompanies the fee note.
With effect from 31 January 2013, the Bar Standards Board introduced a standard form contract (The (New) Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012) intending to govern the provision of legal services by barristers. Solicitors can, however, still open a dialogue with chambers and negotiate their own terms for work to be conducted by a barrister. Many chambers now insist on adopting the standard form contract but many chambers will agree to continue their pre-existing terms of business (many without a contract).
After the introduction of the new standard form contract a Resolution working party was established and tasked with preparing an alternative standard terms document. For the assistance and guidance of Resolution members, those alternative standard terms are appended to this guide As a further alternative, many solicitors engage counsel on the terms and conditions set out in the ‘General Terms and Conditions for the Supply of Legal Services by Barristers to Solicitors in Commercial Matters’ (usually known as the ‘COMBAR/CLLS terms’) or a variation thereof.
- This good practice guidance does not and cannot affect any obligations in law, specific court orders or rules of professional conduct.
- Good practice guidance can inevitably only deal with generality of situations. It cannot be an absolute rule. The facts of any particular case may justify or require a lawyer to depart from these guidelines.
- This guidance applies to all family law cases for the better conduct and approach of family breakdown issues, and not just to cases between Resolution members.