Not a lot of people know this, but since 2010 it’s been possible to appoint a barrister to advise or represent you without going through a solicitor. To understand whether or not that’s something you need to know or care about and before you can the answer the question, should I appoint a barrister, you need to understand what the difference is between a barrister and a solicitor.
They are all lawyers. Barristers are not senior to solicitors, and you do not graduate from solicitor to barrister. But the two types of lawyers do perform different roles. In a nutshell, the difference is this: a barrister is a specialist advocate. They will also be a specialist in their field. Their work will be exclusively in-court advocacy and negotiation and advising their clients. Barristers are self-employed and out and about. This means their infrastructure and administrative support is slender, but their overheads are lower, making them cost-effective in the right circumstances. A solicitor will handle the paperwork: they will issue the applications, deal with the correspondence, and send documents to the right person.
Not a lot of people know this, but since 2010 it’s been possible to instruct a barrister to advise or represent you without going through a solicitor.
They too will advise their clients. They may also do some or all of their own advocacy but, because of their additional responsibilities and the different business set up, few solicitors will be in court as frequently as barristers, or will deal with as many complex trials as barristers. A solicitor will usually instruct a barrister to represent their client in court for two reasons: their commitments to their other clients mean they can’t attend court on that day, or they feel that the case requires a specialist advocate or expert guidance.
Having said that the legal sector is in the process of deregulation and the ways that lawyers organize themselves are changing and are likely to change even more. Public access instruction of a barrister is just one example of those changes.
When should I consider instructing a barrister directly?
You might particularly consider instructing a barrister directly in the following circumstances:
- You are not involved in a court case but think that you might be, or that you might need to start a court case. A barrister could give you some advice so that you could understand where you stand and what application you should make.
- You are unlikely to be able to afford to pay lawyers to represent you continuously through a court case but need some one-off advice
- You would like some advice before you decide whether to pay for representation at a hearing
If you need urgent advice, if you need to issue an application very quickly, or if you want to be represented at a hearing in the immediate future you should seek advice from a solicitor. This is because a barrister is likely to be in court much of the working week and may be unable to respond to urgent enquiries in the same way that a solicitor’s office can. A solicitor will be part of a larger firm and will be able to rely on administrative staff and other solicitors to deal with urgent matters, but a barrister’s business model cannot allow this. They can instruct a barrister to represent you if needs be – and if necessary should be able to locate one who is available at short notice on your behalf.
If your case is likely to require significant amounts of correspondence, the gathering of lots of evidence (for example obtaining police records) and preparation of witness statements, or the instruction of experts, your case might be better dealt with by a solicitor.
Is appointing a barrister right for your case?
Before a barrister can agree to advise or represent you they have to assess whether or not it would be better for you to be represented through a solicitor. If you are struggling to manage your paperwork or to organize your thoughts, or if you are going to have real difficulty in managing the administrative part of your case a barrister will probably have to refuse your case as a public access case and suggest that you contact a solicitor (you could still instruct a solicitor and ask them to instruct a particular barrister for you).
If you would like to get some advice directly from a barrister the best way to ensure that your case is suitable for public access is to follow the guidance below:
Leave plenty of time: The commonest reason that barristers decline public access instructions is that things have been left too late. Remember that a barrister’s diary will be full up in advance with court bookings. You need to leave enough time for them to consider the papers and to advise you. If everything is up to the wire you will probably be better off going to a solicitor first – they can access a pool of barristers and will usually be able to find someone who can make the date of your hearing. If you want to instruct a particular barrister you are entitled to ask them to do this for you.
Appointing a barrister and your paperwork.
Organize your paperwork: Before a barrister can take a case on they have to be confident you can manage the administrative side of the case that a solicitor might otherwise handle. Keep your papers in order: file orders and applications, statements, correspondence and other material separately and in chronological order. Generally, a barrister will need to see all the papers in the court bundle even if you think they are not relevant. If you are asked for a particular document send that document – let the barrister decide what is and is not relevant.
Formulate your questions: Know what you want the barrister to do. Do you want general advice about how strong your case is? Do you want a specific technical question answered? Do you want practical advice about what application to make or what to do next? Or do you want advice about how to maximize your chances of getting the best possible outcome?
Be frank and balanced: Your barrister will need to know not just how you see the case but also how the other party sees the case. It is pointless asking for advice about the case when you have only given half the story. Explain the issues being raised by the other party even if you don’t agree with them. Be honest with yourself and your barrister about the weaknesses in your case.
Legal aid is not available to pay for the costs of instructing a barrister through public access, so if you are likely to be eligible for free legal advice / representation it is likely you will be advised to instruct a solicitor in order to benefit.
Postscript. Additional reading material is contained in a number of books explaining the law to people going through a divorce or separation. There is a range in our specialist shop. We have links to a number of organisations and charities who offer additional advice and support on these pages. If you are considering looking for alternatives to going to family court, these pages have some quality useful material to read through.
Lucy Reed contributed to ‘Separating With Children 101’, 3rd edition, (Bath Publishing, 2023)