In-house bar litigation rights reviewed

Thousands of employed barristers in companies may soon have their powers considerably extended to that of lead litigators under proposals under inspection by the Lord Chancellor.

At present, in-house barristers are restricted to working on cases until the point that court action arises, when work is done by in-house solicitors or outsourced.

The Bar Council and the Lord Chancellor’s Department are due to meet soon to discuss the training and supervision required by employed barristers in order for them to become litigators.

The reforms will benefit in-house legal teams made up of employed barristers. Steven Bacon, in-house employed barrister for Express Newspapers and former Bar Association for Commercial Finance & Industry (Bacfi) chair, has to outsource work because there are no litigators in his team.

He says: “When we get complaints, we normally settle before litigation; but when we do [litigate], it’s very annoying as we have to outsource, which increases costs.”

Susan Ward, chair of the Employed Barristers’ Committee of the Bar Council and general counsel at the London Clearing House, says: “The Law Society has had the right to grant litigation rights to its members, but the Bar Council hasn’t. Clients don’t worry about the niceties of being a barrister, they just want legal services to be provided. But if there’s a small legal team with only barristers, then the work has to be outhoused, which is annoying.

“I don’t foresee any objection in principle, as the Government is very keen to get this on board.”

Lord Irvine will consult the Legal Services Consultative Panel, the Office of Fair Trading and senior judges before making a decision. The proposals do not affect those barristers on law firms’ payroll who are already closely affiliated to any litigation team.

Litigation rights will not be extended to the thousands of company legal advisers who were until last year called non-practising barristers. They do not have higher rights of audience like employed barristers and those in chambers.

The employed barristers’ potential new powers will effectively mean they come under the auspices of the Courts and Legal Services Act 1990, which governs litigators. It would enable in-house employed barristers to issue writs and commence proceedings before any court, as well as ancillary functions in relation to proceedings, such as entering appearances to actions.

Mark Stobbs at the Bar Council’s professional standards and legal services department, says: “There are certain technical things concerning putting proceedings to the court that at present only solicitors can do. If the employed barristers get their new powers, then they’ll be able to take over a case.”