by Anthony Bowhill
As from April 1 1989, chartered surveyors have direct access to counsel. This now means that they can instruct and brief a barrister without the necessity of going through a solicitor: other recognised professions have been given similar rights.
This article sets out the background to this important move and explains how direct access for the chartered surveyor is likely to work in practice. It looks in particular at the areas where direct access is applicable; considerations which a chartered surveyor should undertake before embarking on such a course; the practical steps necessary to issue instructions; and the general conduct of proceedings when counsel is instructed by a chartered surveyor.
Hitherto, in order to gain legal advice or representation from a barrister, clients have had to use their solicitors (with certain exceptions mentioned below) to issue the necessary instructions and generally act as an intermediary. The reasons for this were summarised by the Benson Commission (the Royal Commission on Legal Services, 1979), who considered that the Bar’s rule had been adopted so as:
to ensure that barristers are free from hour to hour distractions and that the specialist matters with which they deal are presented to them by a lawyer who has already identified the issues and sifted out the relevant facts rather than by the lay client himself who can only present his problem as a whole. The object is not to put the barrister at a distance from his client but to ensure, so far as possible, that his specialist skills are efficiently used, that he has the time necessary to concentrate on them and that he remains sufficiently detached from his client to be able to give him advice which is wholly objective.
Background to direct access
The question of direct access has been debated over the past 10 years or so. The Benson Commission concluded against direct access by all clients because they saw any relaxation as a threat to the two main principles regarding the maintenance of a two-branch profession (solicitors and barristers) and the exclusive rights of audience given to barristers in the higher courts. The commission said:
We do not think it will be possible to maintain an effective two branch profession if barristers receive clients directly and, in order to compete effectively with solicitors, had to run offices organised in the same way and subject to the same disciplines. The advantages of the present arrangements would be lost.
Having decided against direct access by all clients, the Benson Commission looked at whether these rules should also apply to professional advisers. They considered certain specific professions, including chartered accountants, but concluded that there should be no modification of the present arrangements, other than for London notaries and patent agents. The commission thought that such a modification would be undesirable, first because it would blur the dividing line between those professions which were permitted direct access and those which were not and, second, because membership of a profession did not of itself imply the necessary ability or knowledge to prepare instructions for counsel. They concluded.
No doubt there are occasions when an accountant could put a case to a barrister as competently as a solicitor. The same may be true, in occasional cases, of doctors, architects and engineers but if there is to be a line it must be drawn somewhere.
This matter was taken up in June 1986 by a report of a Bar working party (the Godfrey Report). The working party looked at the question of instructions emanating from specialist professions and recommended that they should be entitled to instruct counsel to give advice and conduct proceedings (other than court proceedings) in tribunals for which such members would themselves have a right of audience on behalf of their own clients, eg planning inquiries.
The Godfrey Report was accepted by the Bar Council in December 1986 but was referred to the Committee on the Future of the Legal Profession, under the chairmanship of Lady Marre, which had been set up by the Bar Council and the Law Society in April 1986 to review generally services offered by the legal profession. The Marre Committee reported in July 1988 but, in the meantime, the Bar set up a further working party under the chairmanship of Gareth Williams QC to investigate ways in which the Godfrey Report might be implemented. The Williams Report endorsed the Godfrey Committee’s view that direct access from specialist professions should be allowed and made further recommendations upon detailed issues.
The proposals to allow wider access to counsel brought forth hostile comments from the Law Society, who felt that the proposals of the Godfrey Committee represented an illogical halfway position. The society thought that it should be for the individual barrister to decide whether he or she would accept direct instructions and that this matter should not be resolved until the restrictions on advocacy in various courts had been resolved. If the then restrictions on access were to be removed, the Law Society felt that barristers would need training for such direct access, which might be obtained in a solicitor’s office, and that the obligations of solicitors as Officers of the Supreme Court might have to be assumed by barristers.
The Marre Committee weighed up these conflicting views and concluded that a barrister should be able to act on the instructions of a member of another specialist profession. However, a number of the committee members, including a majority of the independent members, wished to go further and lift all other restrictions on access to counsel. They argued that the analogy of the medical profession was helpful. There it was possible for a patient to meet a consultant direct, but this was rare because of the advantages of a general practitioner identifying the problems and knowing the sources of expert advice available.
Following the Marre Committee’s report in July 1988, the question of access to counsel remained somewhat in limbo. The Marre Committee, however, having come down in favour of access from recognised professional bodies, undoubtedly encouraged the Bar Council to proceed along these lines. In an interview published in The Times in November, the then chairman-elect of the Bar, Desmond Fennell QC, announced that professionals could brief counsel direct and said: “If a chartered accountant has a tax problem, or a surveyor, to use a solicitor as a post box is inappropriate and unnecessary.” This change was due to have come into effect from January 1 1989 but, owing to the necessity of defining recognised professions and of having wider consultations with members of the Bar and new arrangements for payment of Bar insurance, it was delayed until April 1 1989.
It has to be borne in mind that over the last few years, the Bar have been widening the rights of access. Thus, in addition to the changes directly concerning chartered surveyors, barristers can accept instructions in limited circumstances from parliamentary agents, patent agents, trademark agents, London notaries, licensed conveyancers, the government legal service, the departments of local or public authorities and employed barristers. In addition, the overseas practice rules of the Bar provide for instructions to be issued by foreign lawyers for non-UK work from any UK lay client for non-UK litigation or arbitration, and from a non-UK client for non-UK work.
It is also relevant to bear in mind that the Lord Chancellor’s Green Paper, The Work and Organisation of the Legal Profession, suggests that advocates should themselves have the discretion to decide, in the light of the nature of their practice, whether they wish to take instructions directly from lay clients or to restrict themselves to taking instructions only from other professionals.
A barrister’s chambers
A barrister’s chambers has a crucial role in the organisation of his workload. There is, in fact, no requirement that a barrister should practise from any particular place, but if he wishes to open chambers in central London (other than in premises owned or managed by the Inns) he must apply to the Bar Council for consent. Likewise, a barrister who wishes to open a set of chambers on circuit (ie outside Greater London) must obtain the consent of the circuit.
Barristers cannot form partnerships, but work on an individual basis in chambers. Unlike professional firms, who in accepting clients’ instructions can delegate these from a particular partner to an assistant, barristers are bound by their code of professional conduct to undertake their work individually and cannot delegate or assign the matter to another barrister without the express consent of the client. At the same time, chambers’ organisation is limited and barristers do not have the back-up services usually found in a professional firm. This situation is unlikely to change because of the widening of direct access to counsel, and chartered surveyors will need to ensure that the instructions they issue are comprehensive, identifying the key issues, thereby ensuring that counsel is quickly able to give the requisite advice.
One advantage of the chambers system is the fact that barristers do not suffer from any conflicts of interest within the same chambers. Chartered surveyors in partnership cannot act for both parties in a dispute, whereas barristers in the same chambers can carry out such work. Where their members are briefed by both parties, specialist chambers go to considerable lengths to ensure that the confidentiality of the client’s affairs is not lost through inadvertent errors.
Most barristers whom chartered surveyors will wish to instruct will be found in specialist chambers, dealing with such topics as local government and planning work, landlord and tenant, building disputes and arbitration. Most — although not all — are in London, with some provincial general chambers in the larger cities having specialist barristers.
Unfortunately, because of the restrictions placed on the location of chambers and the need to be near the courts in central London, accommodation in chambers is not always of the highest standard and there is sometimes difficulty in accommodating large conferences. Barristers do not have a large back-up staff and, therefore, it is important when issuing instructions that these are complete in every respect, so that any unnecessary further work for the barrister is avoided.
Counsel’s clerk
Of particular importance is the role of the barrister’s clerk. This can be described as:
(a) office administrator and accountant;
(b) business manager;
(c) agent.
The clerk’s role is important because of the rule that every barrister must have a clerk and because of a further rule that those instructing barristers must normally negotiate with the clerk rather than the barrister himself about fees. It is, therefore, important to get to know the senior and junior clerks in chambers so that negotiations over instructions and fees can be carried out in a businesslike and friendly manner.
Fees should obviously be discussed and agreed with the barrister’s clerk and the client at the outset. Barristers do not have contractual relationships with a client and cannot sue for unpaid fees. For solicitors it is a breach of professional etiquette if counsel’s fees are not paid within a stipulated time from the submission of a fee note.
When instructing counsel, a surveyor is personally responsible for seeing that fees are paid. In such cases it will be important to ensure that the client is fully aware of the resulting liability and it may be sensible for him to sign an agreement to this effect. It remains to be seen if the RICS will regard the non-payment of a barrister’s fees by a chartered surveyor as a disciplinary matter. This is likely, bearing in mind the Bar’s attitude towards the matter.
Barrister’s fees can be inclusive or exclusive of out-of-pocket expenses (eg cost of travel and hotels) and this should be checked with the clerk before instructions are issued. It is normal for conferences to be charged separately (referred to as consultations if leading counsel (Queen’s Counsel) is instructed) and for the brief fee to cover the cost of attendance at the hearing. If this is likely to be lengthy, then refresher fees for each day above a minimum may also be payable. Again, it is important that these are agreed from the outset, so that the client is fully aware of the situation.
Once it is known that the selected barrister is available, then the understanding as to fees should be fully documented and the clerk informed so that there can be no misunderstanding. The fee should normally be marked on the brief, but it is advisable that an initial letter setting out the situation should be sent to avoid any subsequent difficulties.
Instructing counsel
A barrister’s work falls into two broad areas:
(1) Advice on legal issues and action to be followed.
(2) Advocacy in court and at hearings and inquiries.
Direct access by chartered surveyors allows the instruction of barristers in each of these categories but not to an appearance in one of the higher courts. Thus, while instructions can be issued for attendance at an arbitration or a public inquiry, they cannot be issued in respect of a subsequent challenge to the decision in the High Court. This is a matter for solicitors.
There is no definitive list of where a surveyor can or cannot brief a barrister. Work concerning the High Court, Court of Appeal or House of Lords are matters for solicitors and direct instructions cannot be issued. Generally speaking, if the chartered surveyor has the right of audience before the particular tribunal (eg a planning inquiry) then he can instruct counsel in the matter. However, if he does not have this right of audience (eg in the Lands Tribunal) then his right to instruct is unlikely to be available, although this issue has yet to be finally settled.
If it appears to the surveyor that he is entitled to instruct counsel in the particular matter, then he should consider whether his experience of the topic justifies taking the matter further. Much will depend on the surveyor’s expertise and a judgment will need to be made similar to that when accepting initial instructions. Generally, a surveyor should have direct experience of the matter involved and not merely be acting upon the instructions of others. This role may also have implications for his professional indemnity policy.
The next step is to select an appropriate barrister. Many chambers specialise in particular areas of work (eg landlord and tenant or planning) and will already be known to the specialist surveyor. Even within specialist chambers, some barristers may be better at advisory work than advocacy, and experience and personal contact will clearly be of importance in recognising such factors.
In the absence of personal knowledge, partners and colleagues elsewhere may be able to assist by suggesting suitable chambers or individual barristers. Professional contacts and the regular use of chambers will enable surveyors to build up a knowledge of particular barristers who command their confidence and can be recommended to clients.
The clerk will normally be the first point of contact with chambers. He will be able to tell a surveyor if a particular barrister is available for a hearing or, if not, who is. The clerk can also advise generally on the suitability for particular matters of those in their chambers and, of course, will be available to discuss the important question of fees.
If uncertain as to which barrister to brief, then there are published lists of counsel and their chambers. While these lists are useful and indicate the seniority of a barrister by reference to his date of call, they are no substitute for personal experience and advice from professional colleagues who have worked with counsel in the past.
One question which needs to be answered at the outset is whether the case demands the attention of Queen’s Counsel (leading counsel) and/or junior counsel. Much will depend on the client’s requirements, the difficulty of the matter, the sums involved, the length of time that proceedings are likely to last, the number of witnesses to be called, and the general availability of each barrister over the period leading up to and during the hearing.
There is no longer any rule that leading counsel must appear with a junior, and much will depend upon his workload. Queen’s Counsel may decline to appear as an advocate without a junior if he considers that the interests of the client require that a junior should also be instructed. These points should be raised with the barrister’s clerk at the earliest opportunity, so that there is no misunderstanding at a later stage.
Instructions should issue from a particular chartered surveyor, who should thereafter be responsible for the work undertaken in connection with that instruction. It is accepted that the surveyor will often represent his partners and staff in such instructions, but it is important that he should be directly available if counsel has any particular queries. The naming of the chartered surveyor will allow immediate communication with counsel and not leave him in the difficult position of contacting someone who is not known to him.
The instructions to counsel
Barristers act on the cab-rank principle, ie they are bound to accept any brief to appear before a court in the field in which they profess to practise (having regard to their experience and seniority) at a proper professional fee, having regard to the length and difficulty of the case and to their availability. The Bar have indicated that if inadequate instructions are sent to counsel then he will have the right to refuse these without giving reasons. Normally, this would be because the instructions are in poor order and do not give sufficient detail of the case, and it will obviously be important to know informally why this has occurred. It is unlikely in practice that this will happen very often. However, it has to be borne in mind that a barrister is free to decline instructions directly given if he wishes not to participate in the scheme. In this situation a solicitor will be required if the particular barrister is to be instructed.
Counsel cannot proceed to advise on a case without a brief. The brief contains the instructions to him, setting out in concise form the nature of the issue and the advice required. In the past, the instructions were often typed on brief-sized paper and tied with pink tape wrapped around the various documents. While the pink tape still remains as a helpful way of bundling documents, the use of brief-size paper has virtually ceased with the advent of modern photocopiers and A4 paper is invariably used. A fresh brief will be required each time counsel is instructed, eg in conference and to appear at a hearing.
Both on the endorsement on the outside (often known as the back-sheet) and in the heading on the first page of the instructions, there should be set out the title of the matter (eg in respect of a public inquiry, Fresh Homes and the Barsetshire District Council) or, proceedings having not been started, a heading identifying the parties and the nature of the case. The instructing chartered surveyor’s name and firm should also appear.
On the endorsement and the heading of instructions should be what is required of counsel, eg brief to appear for the appellant at a planning inquiry or arbitration hearing. If counsel is instructed to settle a notice of appeal, then it is good practice to indicate the last date on which notice is to be served. The endorsement should be marked with counsel’s fee, this having of course first been discussed with the clerk.
There are no binding rules for the writing of instructions, and in practice they will vary in length and style. If a barrister and surveyor have worked together before they may be fairly informal, as an alternative to a formally drafted document. The surveyor will develop his own style, but it is suggested that, as general guidance, the following matters should be included.
On the first page of the instructions after the heading, there should be a numbered list of the accompanying documents. It must include any proofs of evidence (if already drafted), notices, relevant correspondence and any other necessary documents, eg development plans, leases etc, which may be necessary to explain the proceedings. Also usually included are any previous instructions as well as any previous opinions of counsel. The documents are normally numbered in accordance with the list so that they can be easily referred to. If the correspondence and documents are voluminous, then arch lever files may be used for ease of handling, together with an interleaved indexing system. Counsel often have their own personal requirements in regard to these matters and experience will soon determine how these matters should be set out. In many cases, it will not be possible to file all documents because of their bulk and these should be numbered separately.
The beginning of the text should make it quite clear on whose behalf counsel is instructed and the nature of the case. Following the list of documents, there should then follow a description of the case and any law suggested as applicable. The facts should be narrated simply and chronologically with clear cross-referencing to the relevant documents. Special attention should be drawn to events or documents which appear significant. Witnesses should be introduced and their proofs referred to as necessary. Any relevant law should be set down, and any initial interpretation stated — although obviously it will be for the barrister to comment on this ultimately. The surveyor should indicate his conclusions and how he thinks the case should be conducted, finishing with a specific list of questions for counsel on particular points raised. Counsel should also be asked to advise generally, because there may be points which have been overlooked or which have not occurred to the instructing surveyor.
To save the time of counsel and to ensure that the surveyor is fully aware of all issues, it is important that the brief should be a concise summary of the case and not merely a garbled version of events. The old adage of sending the file to counsel and asking him to advise thereon should never be followed; instructions should be very much as a report to a client — brief and to the point.
If a written opinion is required, then any time-limits should be stressed (eg serving notice of appeal) and a diary note kept to ensure that the opinion is received in time. A check should be made with counsel’s clerk at the outset to ensure that counsel has the time available to deal with the matter within the stipulated time. Once counsel’s written opinion is received, then it will be important to take such action as may be necessary and, again, any time-limits should be closely watched.
Conference with counsel
When attending upon counsel in conference, chartered surveyors have traditionally been concerned as expert witnesses, but direct access adds a further dimension. In a small case there may be no difficulties, the surveyor effectively combining the roles of expert and instructing adviser, but where the issues are complex and several professional witnesses are involved, careful thought should be given to his role.
In larger cases, particularly those with a number of witnesses, there will often be merit in continuing to instruct a specialist solicitor who can write up the lengthy instructions to counsel and act as team co-ordinator. In smaller cases, these roles can be combined, but the surveyor may consider having an assistant present at the conference to take notes from which the minutes can then be written up. This will assist discussion of the case with counsel while enabling an effective minute to be completed. Much will depend upon the surveyor’s workload and the complexity of the case.
A conference is like a meeting with counsel acting as the chairman. If two barristers have been briefed in the case, they may hold a joint conference. If a silk (QC) has been briefed, then the meeting will normally be held with the silk and the junior barrister in the silk’s room and is called a consultation.
A conference will normally take place at the barrister’s chambers, though it may be elsewhere, eg on site and thereafter at a suitable venue in the locality. However, there are strict rules about where a barrister may hold a conference, and it is essential to consult the Bar’s code of conduct if in difficulty. Clearly, the first choice must be counsel’s chambers, but these are often inadequate for a large conference and the surveyor’s office may be preferable, as it will often have full conference facilities and be nearer the site. Great care should be taken in arranging conferences and their venue, so that Bar etiquette is not breached.
There are practical limits as to who should be present at a conference. The instructing surveyor should always be there if possible. It is improper for a barrister to see the client alone unless there is no alternative. Although the barrister can see the client, he should not normally talk to witnesses of fact before the case comes to court. However, in cases where expert witnesses are briefed this rule does not normally apply, as their evidence will be discussed with the barrister and his advice sought thereon.
It is very important to use the conference to establish a good working relationship and for the barrister to obtain the client’s confidence. Although barristers hold conferences frequently, lay clients (as opposed to professional clients) will only rarely go to a barrister. The case and the conference on it will usually be a major event in the life of the client and it is important for all to establish confidence from the outset.
Initially, it must be decided when a conference needs to be held. This will be basically for the surveyor to arrange, and he may well do so at the suggestion of the barrister or the client. A full brief, as previously noted, must be given to the barrister, and each conference will require a separate brief. Obviously, there will be a variety of circumstances dictating the number of conferences, and the following concerning a planning matter is intended only as a guide:
(1) Counsel may be asked to advise on the prospects of obtaining planning permission and for this purpose will need a report from a surveyor or town planning consultant about the relevant issues.
(2) Before submission of a planning application the nature of the application and completion of the form looking ahead towards an eventual appeal may require discussion.
(3) From receipt of a refusal or conditional approval, counsel’s advice may be sought upon the form of the appeal and grounds of appeal.
(4) With the early exchange of statements now required between an appellant and the local planning authority for a planning appeal, counsel may need to advise upon these and preparatory work for the inquiry.
(5) Leading up to the inquiry, there may be several conferences on the evidence, including separate conferences about specific areas, eg traffic and highway matters. A number of conferences may be held as appropriate throughout a lengthy public inquiry but, generally, a brief for each of these will not be necessary, having been covered in the brief for counsel to attend the particular inquiry.
Whenever a conference is arranged, it is essential that everyone attending should be properly prepared, so that they can get full benefit from it and time will not be wasted. In this regard, the brief to counsel should be circulated to all parties attending so that they may be aware of the points raised. It may not be necessary to circulate all the documents, but the client should be fully aware of the brief to counsel. If counsel has requested any supplementary documents, then these should be either sent to him, preferably beforehand, or handed over at the conference. If there are any additional points outside the brief which have arisen subsequently, then a note of these should be kept so that at the end counsel’s advice can be sought.
If the client or the expert has not been to a conference before, the surveyor should explain its purpose and how it will be conducted. At the start, all present should be introduced and it will be for the instructing surveyor to ensure that everyone knows who is present and what their involvement in the case is.
The conference will normally be opened by the barrister, who will briefly summarise the facts and the stage that the case has reached. If there are any points that need clarifying he will raise them at that stage and then ask general questions of the client and witnesses to see what progress is being made. If the issues are then clear he will advise on the law and merits of the case and give advice on how matters should proceed. It is important that at the end all the main points are summarised, so that individuals are aware of any action they have to take. A note of the conference should be prepared to act as an aide memoire for those attending and others who have to take action thereafter. In this respect, the notes of an assistant can prove invaluable if the surveyor has been particularly involved in the discussions and may not therefore be able to note down all relevant points.
It is not usual for the barrister to give advice in writing after a conference, although, if procedural steps are involved together with drafting, he may amend or settle statements of case. Equally, if there are legal points involved, a written opinion on these may be required, even if the matter has been discussed. If any written matter from the barrister is still outstanding, his clerk should be warned and any time-limits discussed.
Attending the hearing
It is important to re-emphasise that counsel does not have a large office back-up staff. Thus any administrative arrangements for attending at a public inquiry or other hearing will need to be made by the instructing surveyor, who will need to ensure that the team dealing with the matter is similarly informed. These arrangements may include the booking of adequate hotel rooms and catering arrangements, as well as a conference area.
At the hearing itself, counsel will normally lead the team, and the procedures are set out in other publications. Instructing surveyors will have to be on hand during the hearing (unless otherwise agreed) to ensure that counsel is fully briefed throughout. Normally, an expert witness having presented his evidence might leave the proceedings or assist with cross-examination of the opposition’s case, but there will be an additional burden if the surveyor is instructing counsel direct.
At the end of a hearing it is courteous to inform the client as to how proceedings have progressed, but this may not be necessary if he has been in attendance throughout. Also, it may be necessary to keep a full note of proceedings or arrange for a transcript, so that any points which arise can be discussed in conference and cross-checks made. This is particularly important if an appeal on a point of law is likely.
Once the outcome of proceedings is known, the instructing surveyor should ensure that counsel and all team members are informed. He should check to see if any further action is required, not only in respect of carrying into effect the decision, eg implementation of a rent review, but also whether any further challenge is desirable. This may require further advice from counsel.
There is little doubt that the full effect and benefits from direct access to counsel by chartered surveyors will take some time to be felt. It is understood that the Royal Institution of Chartered Surveyors will shortly be publishing guidance notes and these will be helpful in assisting the surveyor in understanding his role in this matter. The Bar’s code of conduct is also an invaluable guide on the practice and procedure to be adopted when liaising with counsel.
