Instruct Counsel

1

THE DIRECT PUBLIC ACCESS TO BARRISTERS SCHEME:

 

Guidance for businesses and members of the public on instructing Montclare as your public access Barrister

 

Introduction

The purpose of this guide is to explain how the public access scheme works and to show how businesses and members of the public can use it to instruct Montclare.

 

What is public access?

Members of the public may now go directly to Montclare a Public Access Barrister without having to involve an instructing solicitor or other intermediary. In the past it was necessary for clients to use a solicitor or other recognised third party through whom Montclare would be instructed.

 

Although Montclare’s role remains essentially the same, businesses and members of the public may instruct Montclare directly through the public access scheme.

 

What are the advantages of the public access scheme?

The main advantage of the public access scheme is that it could potentially save you money whilst giving you access to the Bar, since you would be paying for Montclare only instead of Montclare and a solicitor. However, although Montclare would be able to deal with most aspects of the case, you could have to assist in some limited areas, generally with filing documents with the court. This is explained in more detail below.

 

Is my case suitable for public access?

Public access is available in all types of work that Montclare can do, except for work funded out of legal aid. It is most suitable for reasonably straightforward cases. It is likely to be inappropriate in cases involving children. If you are not sure whether your case would be suitable for public access, you should contact Montclare (see below) or his clerk and seek an initial view. If Montclare considers that your case would benefit from the involvement of a solicitor, he will tell you so. Montclare may choose whether or not to take a public access case. The factors which he will take into account are discussed below.

 

How do I make use of the public access scheme?

2

To use the scheme, you would have to instruct Montclare yourself. Further details of how to

do this are given in this guidance.

 

3

The public access scheme

The difference between the services offered by Montclare and a solicitor

Montclare specialises in providing expert legal advice, advocacy and the drafting of documents.

 

 

The services offered by Montclare is different from those offered by solicitors for two main

reasons.

 

1) First the different service offered:

Montclare is trained as a specialist adviser and advocate. This means that he becomes involved where expert legal advice is needed, where documents need to be drafted for their clients to use, or for advocacy (presenting a case in court or before some other tribunal or organisation). Solicitors also give advice to and draft documents for their clients to use or may instruct Montclare to provide this service. Some solicitors also provide advocacy services to their

clients, although many prefer to instruct Montclare to do this.

 

2) By law, Montclare is not able to provide some of the services that solicitors offer. On the other hand, some solicitors do not themselves provide advocacy services. At present only a solicitor may conduct litigation and take the formal steps that are necessary to progress and action. Montclare will advise you if he considers that anything you want done is something that only a solicitor can provide.

 

 

 

Some examples of work which Montclare is allowed to do:

a) Montclare may appear on your behalf at Court.

b) Montclare may give you legal advice.

c) Montclare may draft documents for you, such as a will.

d) Montclare may advise you on the formal steps which need to be taken in proceedings

before a court or other organisation and draft formal documents for use in those

proceedings.

e) Montclare may draft and send letters for you on his Chambers’ headed paper.

f) If a witness statement from you is required in proceedings, Montclare may prepare that

statement from what you tell him or her. Montclare may also help to prepare witness statements from another person based on the information which that person has provided.

g) Where a case requires an expert witness (for example, a surveyor), Montclare may advise you on the choice of a suitable expert and may draft a letter of instruction which you

can then send to the expert as a letter from you on your own notepaper.

 

 

4

What Montclare cannot do on your behalf:

The following are examples of work that Montclare is not allowed to do:

a) Montclare cannot issue proceedings on your behalf or to issue other applications or to take other formal steps in court or other proceedings. You would have to send the documents to the court, although Montclare could help prepare them for you.

b) Montclare is not allowed to instruct an expert witness on your behalf.

c) Montclare is not allowed to take responsibility for the handling of clients’ affairs, or to handle clients’ money.

 

Is my case suitable for public access?

In considering whether your case is suitable for Public access, Montclare is likely to take

into account

a) The nature of the work which you wish him or her to undertake

b) Your ability to deal with any aspects of the case which would normally be carried out by a

solicitor that cannot be covered by Montclare.

Much depends on the circumstances of your case. Here are some possibilities:

a) Montclare might decide that your case is suitable for public access and that there is no

need for the involvement of a solicitor. If circumstances change, Montclare may have to advise you that a solicitor will need to be instructed.

b) Although your case may become unsuitable for public access in the future, it is suitable

for public access for the time being. In such a case, Montclare will inform you

i) of the work which is suitable for public access

ii) the likely point at which your case will become unsuitable for public access and

iii) that he will have to withdraw at that stage if you do not instruct a solicitor.

c) Your case is such that (whether because of its complexity, or because of the stage which

it has reached) it is not suitable for public access and that a solicitor is required. In this situation, you should be told by Montclare why your case is not suitable and that he would be prepared to act for you if instructed by a solicitor. In such circumstances you can ask Montclare to recommend a suitable solicitor to you. If Montclare decides to accept your instructions, you will be sent a client care letter.

 

Is Montclare obliged to accept public access work?

5

Montclare may choose whether or not to accept public access work. This choice is restricted

in that it is impermissible to refuse to take on a case for specific reasons, relating to

discrimination.

 

When deciding whether to accept instructions in a case, Montclare must consider whether that case is suitable for public access. If he she decides that it is not suitable, he must decline the instructions. Throughout the case, Montclare remains under a continuing

duty to consider whether a case remains suitable for public access, and he must refuse to continue to act on a public access basis if it is no longer suitable.

 

Does a Barrister need special training to take public access work?

 

Barristers must satisfy a number of conditions before they can accept public access work.

Subject to limited exceptions, before a Barrister is permitted to accept public access work he

or she must have:

a) practised for a total of three years following the completion of training

b) attended a “public access” training course approved by the Bar Standards Board and

c) given certain notices which are required to be given by the Bar Code of Conduct.

 

Or received exemption from (a) and (b) due to a similar level of experience

 

Instructing a public access Barrister

 

6

 

How do I instruct Montclare?

Try to clarify in your own mind the nature of your problem and what it is that you want Montclare to do.

Telephone Montclare’s clerking team on 0845 083 3000 Montclare practises and tell them that you wish to instruct Montclare directly.

 

He will tell you what to do next. You will have to explain that you wish to instruct Montclare directly and the nature of the work which you wish Montclare to undertake for you. You may be asked to send written instructions, setting out the factual background to your case and what it is that you want Montclare to do. Alternatively, Montclare may decide that it would be appropriate in the first instance to discuss the matter with you on the telephone or at a preliminary meeting to decide on the best way forward.

 

Proof of your identity

In certain circumstances, Montclare will be required by law to carry out certain identification procedures. These must be followed as soon as reasonably practicable after you have first made contact with Montclare – it is likely that this will take place after you make the initial contact described above. Whether these procedures apply and, if so, how they should be followed, need to be considered by Montclare when you first make contact.

 

Where the procedure applies, Montclare will require satisfactory evidence of your identity –

that is, proof of your name, date of birth and current address. The type of evidence required will depend on the circumstances. For example:

 

a) If you are acting as an individual, you may be required to produce in person your current passport or other national identity card or a new form of driving licence (with a photograph)

together with a recent utility bill, bank or building society statement.

 

b) If you are acting on behalf of a company, you will need to produce a certified copy of the Certificate of Incorporation, the latest accounts filed at Companies House and evidence that you are authorised to act on behalf of the company.

 

To carry out the procedures properly, Montclare may well have to have a meeting with

you. You will be told what to bring to that meeting. Montclare is required to take copies of

the documents which you bring and to retain those copies for 5 years.

 

What happens next?

Montclare will have to decide whether your case is suitable for public access. He will charge you for this Preliminary work.

 

7

If your case is suitable for public access, you and Montclare will have to agree the terms on which he is to carry out the work. Those terms will be set out in a client care letter which will be sent to you.

If your case is not suitable for public access, Montclare will tell you so. If you wish, he may recommend a suitable solicitor for you to instruct. Some cases obviously will be suitable for public access. In such a case, and provided that:

 

(a) Montclare is willing to undertake the work, (b) agreement can be reached about the  charge which will be made for that work and (c) where appropriate, you have provided satisfactory proof of your identity, your instructions will be accepted and a client care letter will be sent to you. The role and importance of the client care letter is described below.

 

In other cases, Montclare may suggest that you have a preliminary meeting before deciding whether or not to proceed with the instructions.

It is also open to Montclare to accept instructions to read the papers for which there will be a charge and advise whether or not he is able to perform the work which you wish him or her to undertake.

 

The client care letter

The client care letter records the terms of the agreement between you and Montclare. It is a very important document and you must read it carefully.

It contains a description of the work to be undertaken, the basis on which you will be charged for that work, and the other terms of the agreement between you and Montclare. If you are unclear about, or disagree with any of the contents of that letter, you must raise your concerns with Montclare immediately.

 

How will I be charged?

Montclare usually charges according to the complexity of the case

and the length of time involved in dealing with it. It is important that the cost to you, and the stage at which the fee is payable is agreed at the outset, and that the terms of the agreement are clear to both you and Montclare.

 

There are no formal scales of fees for Montclare’s work. Montclare will charge according to the complexity and length of time involved in any particular matter. The amount to be charged for any particular piece of work, and when the fee becomes payable, is a matter for negotiation between you, Montclare and his clerk.

 

It is very important that you and Montclare agree from the outset the basis upon which you are to be charged for work and the time at which the fee will become payable.

 

8

Where the fee relates to a hearing, Montclare is entitled to the fee, whether or not the hearing goes ahead.

 

In other cases (whether for a conference or for paperwork), it may be possible to fix a fee in advance for the work. However, that will not be possible in every case. Where it is not possible, you should ask for an estimate. You may be able to agree with Montclare that

there should be a “ceiling” on the fee charged for a particular piece of work.

 

If you agree a fee in advance of the work being done, then Montclare will require that fee to be paid before carrying out the work. Where a fee is not fixed in advance and the work involves the production of paperwork (for example, the drafting of a contract), Montclare will require you to pay for the work after he has completed it and before releasing it to you.

 

Although conditional fee agreements (agreements under which a fee becomes payable only in the event of success in a case) are possible, it is unlikely that Montclare will be willing or able to undertake public access work on a conditional fee basis, save in very rare cases.

 

Montclare is required to keep sufficient records to justify the fees that he is charging. You are entitled to ask for details to justify the fee that you are being charged.

 

 

 

What if I qualify or may qualify for public funding?

If you could be eligible for public funding, Montclare has to advise you to approach a solicitor. It is unlikely that Montclare will be able to carry out the means assessment required to establish whether you would qualify for public funding. Further, at present, Montclare is not

able to apply to the Legal Services Commission for public funding on your behalf. If it appears that you may qualify for public funding, therefore, Montclare has to advise you to approach a solicitor with a franchise from the legal Services Commission to investigate this

possibility.

 

Can Montclare stop acting for me after he has accepted my instructions?

In public access cases, Montclare must stop acting for you if he considers that the case is no longer suitable for public access. Montclare may be able to assist if, as aconsequence of no longer continuing to act for you, you will or may experience difficulties in

relation to an imminent hearing.

In public access cases, Montclare is also required to cease to act where he has formed the view that it is in your interests or the interests of justice that you instruct a solicitor or other professional person. In such cases:

 

a) Montclare is under a continuing duty to consider whether your case remains a suitable case for public access. If he forms the view that it is not, you will be advised of this fact. If you then instruct a solicitor or Montclare, he may continue to act for you. If you do not, Montclare must cease to act for you.

 

 

9 b) If you are a party to proceedings in which a hearing is imminent, and you are likely to

have difficulty in finding a solicitor in time for the hearing, your Montclare should provide you

with such assistance as is proper to protect your position. Although Montclare may notcontinue to work for you on a public access basis, he may be able to assist you by,

for example:

 

i) Drafting letters for you to send, asking for an adjournment of the hearing

ii) Writing a letter to the court in support of that application, explaining that he has had

to withdraw and, if appropriate, the reasons for it

iii) Assisting you to find solicitors.

 

Can I instruct Montclare directly when I have already instructed solicitors?

 

You may instruct Montclare directly even though you have already instructed solicitors. If you do so, Montclare will still have to consider whether he should accept your instructions. However, the fact that you have retained solicitors is not of itself a reason for refusing to accept your instructions; nor may Montclare contact your solicitors without your

permission. However, there may be cases (for example, where your case involves existing litigation) where Montclare will refuse to accept your instructions unless you give him or her permission to contact and liaise with your solicitors and you also give your solicitors the necessary permission to provide information to Montclare.

 

Confidentiality and compulsory disclosure of information

Montclare will be under a strict professional duty to keep your affairs confidential. Legal professional privilege protects your communications with Montclare from disclosure. The

only exception is that any lawyer may be required by law to disclose information to governmental or other regulatory authorities, and to do so without first obtaining your consent to such disclosure or telling you that he has made it.

 

For further details on instructing Montclare email him