Public Access Barrister

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.

I offer a simple and cost-effective fixed-fee early settlement service.

For a fixed fee, payable in advance of commencement of a defined scope of work, I also conduct litigation, and can represent you as an advocate from start to finish in any court in England and Wales, without the involvement of a solicitor.

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).

Costs

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.

International Trust Disputes

For international trust disputes, while rights of general admission are only granted to persons resident in the Cayman Islands, I can appear as counsel in any hearing in the Courts of Cayman, if granted limited admission on a case specific basis, i.e. as and when required, where I can add value in a complex international trust/breach of fiduciary duty dispute.

In order to be admitted, I would need to be instructed by a local attorney who would provide a supporting affidavit about why my services are required in the case that is before the Cayman Islands Court, i.e. because of my specialist knowledge and expertise.

The practice would appear to be the same in the courts of the British Virgin Islands.

In Bermuda, if the Bar Council determines that my involvement in a case as counsel is appropriate, i.e. because of my specialist legal knowledge or heavy involvement in the proceedings, then it can issue a Special Practicing Certificate to me for the hearing. The application for Special limited admission to the Bermuda Bar  would be made by a registered law firm in Bermuda.

In Singapore, I may apply for ad hoc admission in a case under s.15 of the Legal Profession Act on the grounds that I have special qualifications and experience for the case.  To apply, for temporary rights of audience, an originating summons supported by an affidavit of the applicant, or of the advocate and solicitor instructing him, stating the names of the parties and brief particulars of the case in which the applicant intends to appear, needs to be served on the Attorney-General, the Law Society of Singapore, and the other party or parties to the case.

In Australia and New Zealand I can also apply for temporary audience rights from their Law Societies.

Where the hearing takes place remotely, I can appear as an advocate working from 1 Essex Court, or at a solicitors’ office in London.

As an SCMA accredited mediation advocate, I can represent a party in a virtual mediation in any of these jurisdictions, and again would only act, if instructed by a local attorney.

Dual capacity

A self-employed Barrister who holds a dual capacity practice certificate (for which I qualify and can apply), is licensed to provide any advisory, drafting, and advocacy services exercising full rights of audience, to a firm of solicitors.

A dual capacity Barrister can enter into an umbrella contract for services with a firm of Solicitors to provide advisory, drafting, and advocacy services to the firm’s lay clients:

  1. at the firm’s offices or elsewhere: and
  2. as and when required.

In a litigation matter, the Barrister would appear, exercising full rights of audience, as a legal practitioner providing advocacy services to the law firm’s client. In which case, for the court’s record, the lay client is represented in the proceedings and at any hearing by the law firm, and not by the Barrister.

A law firm website can include the professional profile of a dual capacity Barrister who provides legal services to the firm under a contract for services. In principle such a Barrister could accurately be described as an ‘Associated’ or ‘Affiliated Counsel’.

If you are interested in discussing the benefits of entering into an umbrella contract for services, under which I can provide niche contentious probate services to your clients through your firm, please send an email to carl@ihtbar.com.

From January 2014 overseas lawyers can also instruct and engage barristers directly to conduct litigation in the courts of England and Wales.

‘A barrister can now accept instructions directly from a foreign lawyer to provide advocacy services preparatory to appearing in Court in England or Wales without an English solicitor intermediary. The barrister cannot (unless he has the requisite conduct of litigation extension) step foot in Court without a solicitor (or other authorised litigator) but, if there were some urgent need to prepare for, say, an injunction, [he] could start work on the skeleton argument and oral arguments in parallel with the search for a suitable solicitor, subject to the client or foreign lawyer bringing in a solicitor by the time of appearing in Court.’ A summary note of changes to the rules on international practice published by the Bar Standards Board 20.01.2014.