What are the restrictions in direct access?

(A) Restriction on conducting litigation

A barrister in independent practice does not have the right to conduct litigation. In a direct access case the client is conducting the litigation as litigant-in-person. You must be careful not to take any steps which could be regarded as the conduct of litigation. The BSB takes the view that the following fall within this definition and therefore you should refuse to do them:

• issuing proceedings or applications.

• acknowledging service of proceedings.

• giving your address as the address for service.

• filing documents at court or serving documents on another party.

• issuing notices of appeal.

You may advise your client on how to take any of these steps.

The following are therefore permissible:

• lodging documents for hearings, provided that they are ancillary to your role as an advocate. Barristers often draft the case summary, chronology, list of issues or position statement. There is nothing wrong with clerks or barristers lodging these sort of documents. However, it is likely that lodging a full trial bundle will breach the prohibition on conducting litigation.

• exchanging skeletons with an opponent or sending skeletons and bundles of authorities to the court.

• covering applications to fix trial dates.

• liaising with the other side or the court over the preparation of an order.

• discharging a duty or a courtesy to the court.

• signing a statement of truth.

Note, however, that self-employed (as opposed to employed) barristers are allowed to apply for an extension to their practising certificate in order to be able to conduct litigation. This means that, as long as direct access barristers have the correct authorisation, their clients no longer have to act as a self-representing litigant or instruct a solicitor, should the case go to court.

(B) Code of Conduct restrictions

The following are expressly prohibited by the Code of Conduct:

• receiving or handling clients’ money, except as payment for fees. The prohibition against holding clients’ money means that a barrister cannot make disbursements on behalf of a client, for example by paying court fees or witnesses’ expenses.

• undertaking the general management, administration or conduct of a client’s affairs. 

• instructing an expert witness or other person on behalf of a client, or accepting personal liability for the payment of any such person.