The Bar Council’s new direct access rules leave barristers wide open to negligence claims

The floodgates for claims did not open following the decision in Arthur JS Hall v Simons (2000) to abolish a barrister’s automatic immunity from negligence claims arising from court work. However, following the Bar Council’s introduction of rules permitting direct access to barristers from the public for limited types of work, this may change. The restrictions on bar access were relaxed, effective from 6 July 2004, with prompting from the Office of Fair Trading review.

As the Bar Council’s guidance recognised, the solicitors’ absence represents a major change in barristers’ practice and their relationship with their client. The well-intentioned aim was to remove unnecessary barriers to the provision of services and to reduce costs by cutting out intermediaries. The council has chosen to retain its regulation and the client will have direct access to conventional barrister services rather than full litigation services. The council has distinguished between these two functions; to have not done so would have removed the distinction between the two branches of the profession and increased barristers’ overheads. Barristers still cannot conduct litigation, issue the proceedings or handle client money; and although they can take witness statements, they cannot “investigate or collect evidence for use in any court”.

The objective is to avoid barristers having to operate like solicitors’ firms. But they will still need to comply with money laundering regulations and to send out client care letters. The rules also ensure that the relationship will be a contractual one, enabling barristers to sue for their fees, but also opening up for the first time the possibility that they could be in breach of contract.

In order to safeguard the public, the council has imposed a rule whereby only those who have at least three years’ experience will be able to undertake direct access work and comply with training requirements – at present a one-day course. It is debatable whether a one-day training course will be sufficient to prepare barristers for the rigours of direct access, given that generally they have no experience of drafting letters or dealing with client care issues.

The cab rank rule will not apply to direct access and barristers must refuse work if they think it is in the interests of the client, or justice, to instruct a solicitor. Barristers have to use their discretion to take on direct work and whether to withdraw from a case, which is likely to lead to confusion and uncertainty among barristers and clients on whether they can act, at least while the rules settle.

Overall, the Bar Council has attempted to permit greater freedom for barristers to accept direct instructions, while trying to restrict this to the barrister’s traditional role. Without an intermediary to act as a buffer, barristers are bound to face more, or certainly differently formulated, claims. Previously, when a client has made a claim in respect of failed or mishandled litigation, there have usually been two targets – the most convenient being the open market insurer-backed solicitor. If a barrister accepts direct instructions from a client, they will be standing directly in the firing line. To protect their position, barristers will have to tread a careful path through the minefield of the Bar Council’s regulations, and will also have to keep records of meetings and advice given and send out client care correspondence to clients, which they may not be accustomed to doing.

Unlike solicitors, barristers maintain a mutual fund. They are only obliged to take out a minimum of £250,000 of cover from the Bar Mutual Indemnity Fund (the maximum available is £5m), but it is possible the minimum will be revised for those undertaking direct access work, as more is directly at stake. No doubt premiums will increase for these barristers. The question remains whether direct access will take off, or whether it is really worth the risk for most barristers.

Peter Causton, assistant solicitor, Browne Jacobson