Public Access Barrister – Contentious Probate & Trusts

I am a registered public access Barrister and TEP, and my Practising Certificate has been extended by the Bar Standards Board to authorise me to conduct litigation.

New enquiries

To enquire about my availability and to instruct me, please contact my Clerk at 1 Essex Court:

Tel: 020 7936 3030 or 020 7832 1010.

Tel out of hours: 07721 866 858.

Email: clerks@1ec.co.uk

Access to 1 Essex Court is from Fleet Street or the Embankment via Middle Temple Lane. Our premises are in the far corner of the car park at the top of Middle Temple Lane, on the first floor.

Before you speak to my clerk please email him a brief description about who is in dispute, over what, and why.

To read my ‘Guide to Instructing a Public Access Barrister’ please click on this link: LINK

For Solicitors my standard terms of engagement are based upon the draft contractual terms agreed by the Commercial Bar Association with the City of London Law Society (the ‘COMBAR CLLS’ terms) as approved by the Bar Mutual Indemnity Fund.

Advice in conference

In order to understand what it is that you want me to advise about, you need to provide a coherent and accurate account of the facts, and to state the outcome you are seeking, i.e. your objectives – what you want the court to order.

Under the professional conduct rules of the Bar which apply to public access work, before a Barrister can agree to act he must evaluate whether or not a solicitor needs to be involved, e.g. to investigate and assemble evidence. I therefore only undertake public access work with clients who can communicate with me clearly, and who make decisions after they have received legal advice about evidence, merits, remedies, procedure, costs, litigation risks, and ADR.

In my experience, the best starting point for a lay client is to assume no knowledge of the law and civil procedure rules, to focus of facts, and to instruct their professional advisor to advise whether or not they have a case, what that is, and what further information needs to be provided and issues investigated to properly evaluate merits. Otherwise the claim will not have been properly analysed.

The simplest and most cost-effective way to assemble and communicate facts in dispute is to provide a concise and accurate chronology of events cross-referred to documentary evidence, which becomes the spine of the claim.

To enable me to advise about remedies, procedure, and merits in conference you will need to email me:

  • a concise and accurate statement about the background to the dispute (i.e. to set the scene);
  • a list of persons involved in the case (and who they are);
  • a brief chronology of events;
  • a list of documents in your possession (including correspondence);
  • HM Land Registry Office copies (in the dispute involves property);
  • the Will and any Codicil;
  • copies of any Caveat and Appearance;
  • a copy of the IHT 400 (in draft form or as filed);
  • copies of any asset valuations; and
  • copies of any statements of case and witness statements.

Preparation for a High Court trial in a contentious probate case involves as a minimum:

  • taking your detailed instructions;
  • analysing the issues of law and fact in the case (which typically involves 4/5 days reading time);
  • drafting a chronology of facts; taking witness statements;
  • investigating and assembling documentary evidence; drafting and filing statements of case and a skeleton argument;
  • the assembly, agreement (if possible), and filing of a bundle of documents with the court;
  • agreement of a fixed fee structure after the work to be undertaken has been accurately scoped and defined;
  • execution of a public access contract; and
  • MLC due diligence (which is a strict legal requirement before any practitioner can act).

Excluded advice

Please note that I do not provide any:

  • advice about conveyancing;
  • advice about Land Registry practice and procedure;
  • investment advice;
  • financial advice;
  • accounting advice;
  • advice about any law other than English law;
  • advice about litigation funding options, insurance (including without limitation ATE insurance), legal aid; and
  • tax advice.

The provision of such advise is expressly excluded under the terms of my retainer.

Claim value

If the value of a claim exceeds £2 million, I will not act, because that is outside my PI Cover.

Costs

I will advise generally about costs risks during the first conference. Please note that I do not make commercial decisions for my clients, therefore the making of any decision by you to propose, accept, or reject an offer of settlement will be expressly stated to be outside my retainer in the Public Access Agreement.

Where a party wins a court action an order for costs is likely to be made in their favour. However, there are three potential problems with this. First, your opponents may not actually be able to pay the costs awarded against them either in full or at all. Second, because the costs would be assessed by the court in a process called taxation, by which the court only allows the recovery of certain costs  (even though you may have had to pay more) you will not get all of your fees paid even if your opponents are able to pay them. In practice you are unlikely to recoup more than two-thirds of your actual costs unless costs are awarded by the court in its discretion on the indemnity basis, which is exceptional, e.g. for intentional wrongdoing and breach of fiduciary duty by a solicitor, and where breach of fiduciary duty is alleged it must be pleaded in accordance with CPR, r. 16.4 and PD 16, paragraph 8.2, which requires  that,

‘The claimant must specifically set out the following matters in his particulars of claim where he wishes to rely on them in support of his claim:

(1) any allegation of fraud,

(2) the fact of any illegality,

(3) details of any misrepresentation,

(4) details of all breaches of trust,

(5) notice or knowledge of a fact,

(6) details of unsoundness of mind or undue influence,

(7) details of wilful default, and

(8) any facts relating to a claim for mitigation expenditure.’

Third, if your opponents are legally aided, you may not be able to recover your costs in any event; needless to say, we will let you know immediately if they get legal aid.

Should you lose a court action or if an order is made against you at the hearing of an interim application, then an order for costs is likely to be made against you in respect of the costs of the other side. This means that you will have to pay your opponents’ legal costs, or a proportion of them, in addition to your own legal expenses.

As a general rule, judges at all levels are required to assess costs  summarily at the end of a trial on the fast track or at the conclusion of any other hearing lasting less than one day, i.e. on the spot at the end of the trial/hearing, see: See, ‘Guide to Summary Assessment of Costs’: Guide to Summary Assessment of Costs 2005 edition (publishing.service.gov.uk)

Remote hearings

I have an account with Zoom, and all of my meetings are currently taking place using this platform, including remote mediations.

Please note that the Chairman of the Bar Council writing in an update to members 23.03.2021 stated:

‘There will be a gradual return to more face-to-face hearings as we emerge from the pandemic and restrictions are eased. But remote working will still be required and may well be a better way of dealing with some work. There needs to be a proper and thoughtful evaluation of how the balance is to be struck. In the meantime, the Bar Council’s position remains that all hearings that can appropriately be done remotely should be. We have made strides in bringing a lot of work online and while not every hearing can, or should, be heard remotely, it makes sense to keep unnecessary journeys and contact to a minimum and to mirror the cautious approach which is being taken at a national level.’