Public Access Guidance for Lay Clients
Public Access Guidance for Lay Clients
Introduction
1. The purpose of this guidance is to explain how the Public Access scheme works,
and to show how members of the public (“lay clients”) can use it to instruct barristers
directly.
What is Public Access?
2. The Public Access scheme allows members of the public to instruct a barrister
directly. In the past it was necessary for clients to use a solicitor to instruct a barrister.
What are the advantages of Public Access?
3. The main advantage of Public Access is that it could potentially save you money,
since you would be paying for a barrister only instead of a barrister and a solicitor.
However, although the barrister would be able to deal with many aspects of the case,
you may have to assist in some areas, including filing documents with the court
(unless the barrister is authorised to conduct litigation on your behalf). This is
explained in more detail below but can be a relatively complex and technical process.
In some cases, the barrister may recommend that you instruct a solicitor because of
the complexity of the case, or because you may need more assistance than the
barrister alone can provide.
Is my case suitable for Public Access?
4. Public Access is available for all types of work that barristers can do, except for work
that is funded by legal aid. It is worth considering if it would be better to have a
solicitor to assist with your case. Some cases may not be suitable for Public Access
CURRENT GUIDANCE
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because of their emotional nature, because they are particularly complex, or
because the type of work that needs to be done to prepare the case would be
difficult for you and may not be able to be done by a barrister. If you are not sure
whether your case would be suitable for Public Access, you should contact an
appropriate barrister (see below) or their chambers and seek an initial view. If the
barrister believes that your case would benefit from the involvement of a solicitor,
they will tell you so.
5. You may need to be able to deal with certain administrative tasks to help your case
along, without the help of another legal professional. For example, you may need to
be able to gather together the papers and the evidence in support of your case that
the barrister will need to do the work. You may also need to file documents at court
(for example, submit documents such as expert reports, case summaries or witness
statements, depending on the case) and write to the court and other parties
(although the barrister will be able to draft letters and other legal documents on your
behalf). If you are not sure if you will be able to assist with the various administrative
tasks for whatever reason, it is worth considering if it would be better to have a
solicitor assist you with your case.
6. Litigation is when a legal case is taken to and through a court and some tribunals. If
your case involves litigation, you should ask whether your barrister is authorised to
conduct litigation on your behalf (unlike solicitors, not all barristers are able to
conduct litigation). If the barrister cannot do this for you, you will be a “litigant in
person” and will be treated by the court and the other side as though you were
acting without any legal assistance. If your case goes to court you will be the person
whose name appears in the court's records, and all documents from the other
parties and the court will be sent directly to you. However, you can sometimes ask or
arrange for the court or tribunal and the other parties to copy documents to a third
party other than your barrister. If your barrister has been authorised to conduct
litigation, then they will be able to do these tasks for you.
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7. In considering whether your case is suitable for Public Access, the barrister is likely
to take into account the nature and complexity of the case and (if the barrister cannot
undertake litigation for you) your ability to deal with those aspects of it which would
normally be taken care of by a solicitor. In making a decision the barrister will be
guided by the requirements set out in the BSB (Bar Standards Board) Handbook. If
they decide that your case is not suitable for Public Access, the rules require them
not to act for you. If you wish, they may recommend a suitable solicitor for you to
instruct.
8. A barrister may accept instructions to read the papers and advise whether or not
they are able to do the work which you wish them to do. If your instructions are
accepted for these purposes only, it is important that you are both clear about
whether the barrister will charge you for this. If the barrister is going to charge you,
you will be sent a client care letter. Copies of these letters are available on our
website.
What if I qualify or may qualify for public funding?
9. If you are eligible for public funding (also known as “legal aid”) and wish to take
advantage of this funding, a barrister should advise you to approach a solicitor. This
is because barristers cannot do legal aid work unless they have been instructed by a
solicitor.
10. If you are not sure if you qualify for public funding and you would like to talk to
someone in more detail about getting legal aid, you should contact a solicitor who
does legal aid work. They will be able to tell you about legal aid for a civil case (e.g.
when you are in a private dispute with another individual or organisation) and for a
criminal case (e.g. where a crime may have been committed). It is unlikely that a
barrister will be able to do the required means test to check whether you would
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qualify for public funding. You can find out more information on the gov.uk website:
https://www.gov.uk/check-legal-aid
11. Whether or not you qualify for public funding, you might like to consider whether you
have any insurance policies that might cover your legal fees, or if the fees may be
paid by someone else, for example a trade union.
12. You may not wish to investigate whether you qualify for public funding, or if you
qualify for legal aid you may still prefer to instruct a Public Access barrister. If so, the
barrister should ensure you fully understand that you will not have legal aid for your
case, and the likely costs to you of not accessing public funds. It is likely that the
barrister will ask you to confirm in writing that you fully understand the consequences
of your decision. For example, the client care letter might contain a paragraph stating
that you have made an “informed decision” not to use legal aid.
Does a barrister have to accept Public Access work?
13. A barrister may choose whether or not to accept a case that is suitable for Public
Access. However, a barrister may not refuse to accept instructions:
a. On the grounds of race, colour, ethnic or national origin, nationality,
citizenship, sex, gender re-assignment, sexual orientation, marital or civil
partnership status, disability, age, religion or belief or pregnancy and
maternity;
b. On the grounds that they (or others) do not like the nature of the case; or
c. On the grounds that your conduct, opinions or beliefs are unacceptable to
them (or others).
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14. If the barrister decides to accept your instructions, you will be sent a client care letter
that describes the work to be undertaken, sets out the terms and conditions, states
how much the work will cost and how to complain if something goes wrong.
15. Throughout the case, the barrister remains under a duty to consider whether a case
remains suitable for Public Access. They must refuse to continue to act as a Public
Access barrister if it is no longer suitable for them to do so.
The difference between the services offered by a barrister and a solicitor
16. The difference between what a barrister does and what a solicitor does has become
less obvious over the last few years. However, barristers specialise in providing
expert legal advice, representing clients in court and drafting legal documents.
Solicitors normally give advice to and draft documents for their clients, or may
instruct a barrister to provide this service.
17. Barristers are not able to provide some of the services that solicitors offer. For
example, they are not allowed to hold clients’ money in an account and unless they
have been authorised to do so, they will not be able to conduct litigation. Your
barrister will advise you if anything you want is something which only a solicitor can
provide.
18. The following are some examples of work which a barrister is allowed to do.
a. A barrister may appear on your behalf at court.
b. A barrister may give you legal advice.
c. A barrister may draft legal documents for you, such as a will or statement of
claim.
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d. A barrister may advise you on the formal steps which need to be taken in
proceedings before a court or tribunal, and draft formal documents for use in
those proceedings.
e. A barrister may draft and send letters for you if they have proper systems in
place to manage letters, and are not conducting litigation when not
authorised to do so (see below).
f. If a witness statement from you is required in proceedings, a barrister may
prepare that statement from what you tell them. A barrister 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 in a
property case who can provide technical/professional evidence), a barrister
may advise you on the choice of a suitable expert and instruct them for you.
h. Barristers can negotiate on your behalf and can attend employment, police or
investigative hearings.
19. If a barrister is not authorised to conduct litigation, they should not file
proceedings on your behalf with the court or file other applications, or take
other formal steps in court or other proceedings. (If the barrister has not been
authorised to conduct litigation, you will have to send the documents to the court,
although the barrister could help prepare them for you.). For more information on
what ‘conducting litigation’ means, refer to the BSB’s Guidance on Conducting
Litigation, which is available on the BSB’s website.
20. A barrister is not allowed to handle clients’ money. However, solicitors can hold
client money in their firm’s trust account.
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Does a barrister need special training to do Public Access work?
21. Yes. Before a barrister can accept Public Access work, they must have done a
Public Access training course approved by the BSB, and notified the BSB that they
have done this. You check whether a barrister is Public Access registered by looking
on the Barristers’ Register on the BSB’s website.
Instructing a Public Access barrister
How do I find a barrister?
22. It is important to instruct a barrister who specialises in the area of law for your case.
If you do not know who to instruct, there are a number of ways of finding the right
barrister. The Bar Council has an online directory of Public Access barristers called
the Direct Access Portal: https://www.directaccessportal.co.uk/
23. There are also legal directories for finding barristers; for example, the Chambers &
Partners Guide to the Legal Profession and the Legal 500. Many barristers’
chambers also have their own websites which contain information about the different
barristers who work there, and the type of work they do. A chambers is a practice
where a group of independent self-employed barristers share premises and
administrative services.
24. Alternatively, if you know of a barristers’ chambers which specialises in your sort of
case, you can telephone them and ask the Senior Clerk or Practice Manager to
recommend a barrister.
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How can I find out more information about a barrister’s services and prices?
25. Barristers must make clear on their websites which types of legal services they
provide and in which areas of the law they can help you. For example, whether they
work in family law cases or in employment cases, or whether they represent people
in criminal trials. They must also provide an idea of how long it might take to resolve
your type of case.
26. Barristers must disclose certain information about their costs. This includes making it
clear that you can contact them to obtain a quotation for the work you want them to
do, and how to contact them to get that quote. They must also disclose whether they
usually quote by providing a “fixed fee” (for which they will do all the work required to
meet the needs of your legal matter), or whether they quote for their services by the
hour, and then estimate how many hours work they think your situation will need.
27. Public Access barristers must also publish their actual fees for certain types of
service, so you can compare their prices more easily with those charged by others.
This applies if the barristers are offering any of the following services via Public
Access:
• Employment Tribunal cases (advice and representation for employers and
employees);
• Financial disputes arising out of divorce;
• Immigration appeals (First-tier Tribunal);
• Inheritance Act advice;
• Licensing applications in relation to business premises;
• Personal injury claims;
• Summary only motoring offences (advice and representation for defendants); and
• Winding-up petitions.
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28. All barristers’ practices must also display text to show that barristers are “regulated
by the Bar Standards Board”. They must also provide you with weblinks to check
that their barristers are authorised by the BSB, and to check their disciplinary record.
29. You should be able to find all this information on a barrister’s website. If the barrister
does not have a website, they must provide it to you in a hard copy document if you
ask them to.
How do I instruct a barrister?
30. Try to clarify in your own mind the nature of your problem and what it is that you
want the barrister to do. Telephone the Senior Clerk or Practice Manager of the
chambers where the barrister works and tell them that you wish to instruct the
barrister via Public Access. They will tell you what to do next.
31. Alternatively, if the barrister works by themselves as a sole practitioner i.e. is not a
member of a chambers, you should contact the barrister’s place of work. You should
explain that you wish to instruct the barrister via Public Access and the work which
you wish the barrister to do for you. The barrister may want you to send some further
documents, or alternatively may decide that it would be best to meet you to agree
the way forward.
Proof of your identity
32. In some circumstances, the law will require the barrister to do certain identification
procedures. These must be followed as soon as possible after you have first made
contact with the barrister.
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33. If this is needed, the barrister will require evidence of your identity i.e. 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, other national identity card or a driving licence (with a
photograph) together with a recent utility bill, or 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.
34. To do the procedures properly, the barrister may need to have a meeting with you.
You will be told what to bring to that meeting. The barrister is required to take copies
of the documents you bring and to keep those copies for 7 years.
How will I be charged?
35. A barrister usually charges according to their level of experience, the complexity of
the case and the length of time involved in dealing with it. It is important that the cost
to you, and when the fee is payable, is agreed before the barrister starts work. It is
also important that the terms of the agreement are clear to both you and the barrister
before the barrister starts work.
36. There are no formal scales of fees for barristers’ work. The amount to be charged for
any particular piece of work, and when the fee is payable, is a matter for negotiation
between you and the barrister. All Public Access barristers are independent self-
employed practitioners, competing with each other. If you consider the fee quoted by
one barrister to be too high, try another barrister.
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37. If the fee is for a hearing, the barrister is normally entitled to the fee whether or not
the hearing goes ahead. If that is the case, the barrister should tell you before you
agree the fee. You may, if you wish, try to agree a different arrangement for payment
of the fee.
38. In other cases (e.g. for a meeting or written advice), it may be possible to fix a fee in
advance for the work. However, that will not be possible in every case. If it is not
possible, you should ask for an estimate. You may be able to agree with the barrister
that there should be a “ceiling” on the fee charged for a particular piece of work.
39. The barrister may require their fee to be paid before doing the work. If the work
involves the production of paperwork (for example, the drafting of a contract), the
barrister may require you to pay for the work after they have completed it but before
releasing it to you. The barrister should tell you before you agree the fee.
40. Conditional fee agreements (where you only pay a fee if your case succeeds) are
possible. However, in most cases it is unlikely that barristers will be willing to do
Public Access work under conditional fee agreements. Again, this is matter of
negotiation between you and the barrister.
41. The barrister is required to keep records to justify the fees that they are charging.
You are entitled to ask for details to justify the fee that you are being charged.
Can a barrister stop acting for me after they have accepted my instructions?
42. Yes, but this will only happen in a small number of cases. There will be some rare
occasions when the barrister has to stop acting for you. In Public Access cases, the
barrister must stop acting for you if they believe that the case is no longer suitable
for Public Access. The barrister may be able to assist if, because of them no longer
acting for you, you may experience difficulties with your case.
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43. In Public Access cases, a barrister must also stop acting for you where they believe
that it is in your interests for you to instruct a solicitor or other professional person. In
these cases:
a. Your barrister is under a duty to consider whether your case remains a
suitable case for Public Access. If they believe that it is not, you will be
advised of this fact. If you then instruct a solicitor or other professional person
able to provide instructions to the barrister, they may continue to act for you.
If you do not, your barrister must stop acting for you.
b. If you are a party to proceedings (i.e. you have brought a case against
another person or a case has been brought against you), a hearing is
coming up shortly and you are likely to have difficulty finding a solicitor in
time for the hearing, your barrister should provide you with assistance to
protect your position. Although your barrister may not continue to work for
you on a Public Access basis, they 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 they have had to withdraw and, if appropriate, explaining the
reasons for doing so; and
iii. assisting you to find a solicitor.
Can I instruct a barrister via Public Access when I have already instructed solicitors?
44. Yes, you may instruct a barrister via Public Access even though you have already
instructed solicitors. If you do so, the barrister will still have to consider whether they
should accept your instructions. The fact that you have instructed solicitors is not a
reason for refusing to accept your instructions, and the barrister may not contact
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your solicitors without your permission. However, there may be cases (e.g. where
your case involves existing litigation) where a barrister will refuse to accept your
instructions unless you give them permission to contact and work with your solicitors,
and you also give your solicitors permission to provide information to the barrister.
Confidentiality and compulsory disclosure of information
45. Your barrister is under a duty to keep your affairs confidential. This is called “legal
professional privilege” and protects your communications with your barrister from
being disclosed to others unless you consent. The only exception is that any lawyer
(e.g. a barrister or a solicitor) may be required by law to disclose information to
certain authorities, and to do so without first getting your consent or telling you that
they have disclosed the information.
Complaints
46. If you have a complaint about your barrister, then you should try to resolve it by
following the complaints procedure of your barrister or their chambers. Information
on how to do this should have been provided to you in your client care letter.
47. If you are not satisfied with the outcome of your complaint, then you can contact the
Legal Ombudsman. The Legal Ombudsman is an independent organisation. It deals
with complaints about the service provided by all types of lawyers in England and
Wales. The Legal Ombudsman can decide whether or not the service you received
from your barrister was satisfactory, and can:
• Award compensation for poor service;
• Consider whether the fees charged/paid should be reduced; and
• Decide whether you should receive an apology.
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48. Any complaint to the Legal Ombudsman should be made within 6 months of
receiving the final response to your complaint from your barrister or their chambers
(as long as the response tells you about your right to complain to the Ombudsman
and the six month time limit). A complaint to the Legal Ombudsman must also not be
made more than 6 years after the problem arising, and not more than 3 years after
you become aware of the problem.
49. The Legal Ombudsman will review your complaint and decide whether there are any
concerns about professional misconduct (professional misconduct is when a
barrister has not kept to the BSB Handbook, and so disciplinary action might need to
be taken). If your complaint raises concerns about professional misconduct, the
Legal Ombudsman will refer those concerns to the BSB for consideration. If the
Legal Ombudsman needs to make a referral, you do not need to do anything. The
Legal Ombudsman will let you know if they have made a referral and the BSB will
also contact you to confirm this.
50. The Legal Ombudsman can give you more detailed information on how to make a
complaint. You can contact the Legal Ombudsman:
By phone: 0300 555 0333
By email: enquiries@legalombudsman.org.uk
Through their website: www.legalombudsman.org.uk
By post: PO Box 6806, Wolverhampton, WV1 9WJ
Bar Standards Board
October 2019
