Small and medium enterprises (SMEs) frequently face very intense cost pressures and are obliged to run on very tight budgets. As a result, they can be intensively sensitive to an unexpected financial demand. Such a demand can arise from the requirement to fund legal proceedings, either as a defendant or a claimant. There may be a problem with a lease of premises occupied by the business, the need to obtain rapid and expert employment advice or a pressing requirement to recover payments being withheld by a larger customer. These are merely examples of commonly occurring problems, which may arise without notice and which require virtually immediate action. On the other hand, there may be more predictable requirements for advice in the form of advice on copyright or trade mark issues or the renewal of a business lease.
The cardinal requirements of SMEs are therefore to obtain advice that is truly expert in nature, within a short time of the instructions being provided and at the lowest possible cost. Each of these requirements can be delivered very effectively by using a public access barrister.
A word about how barristers operate may be helpful. The vast majority of barristers are self-employed, however they do, largely, operate from chambers. Chambers provide clerks to run the diary of the barrister together with a small team of support staff and the barrister pays for those services and premises by way of chambers rent. The effect of this structure is that professional expenses are pared to a minimum and the pricing of advice and other services is keen.
Until relatively recently, clients were only allowed to instruct a barrister through a solicitor. However, the rules were relaxed and it became possible for a member of the public, or a business, to instruct a barrister directly: hence the public or direct access barrister became a reality.
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In order to qualify to do this work, a barrister must attend and pass a course specifically designed to ensure that they are fully conversant with the ethical and practical effects of dealing with ‘lay’ clients directly. As a consequence, any client can be completely sure that, in addition to the legal expertise possessed by the barrister, the lawyer will provide full protection for the client.
An important element of direct access is the way in which fees are handled. The Bar Council, the representative body for the Bar, operates an escrow system in which client monies are never directly held by the barrister until the time for payment of those fees arises. The client can therefore have complete confidence that their money is being fairly and properly handled.
I have set out a few examples of the sort of case that is suitable for transaction by the public access Bar. However, it is important to say that not all cases are suitable. Complex litigation may require the instruction of a solicitor. Should that be the case, the barrister will give completely impartial advice to that effect and, if desired by the lay client, assist as to the best solicitor to whom to go to in order most efficiently to meet the client’s needs.
The selection of a suitable barrister is best made by consulting the internet. All chambers have websites in which there are details of the individual barristers working from those chambers. The information will usually be indexed in terms of specialities so that, for example, the website will set out the members of the criminal team, family law team, employment team and so on. The entries for those barristers will give considerable information about their experience, the type of cases in which they have been involved and other information of great value to the client seeking to make a suitable choice of counsel.
Having got some idea of suitable names, the client can then ring or email those chambers and give some idea of the sort of case it is and other information from which a decision can be made about whether the barrister whom the client has in mind may be able to take on the case. Fee rates will be discussed and the next step planned.
The arrangements can be very flexible. Of course, there is nothing to prevent the barrister from providing a service throughout the whole of a claim and representing the SME at trial. But that is by no means always necessary. Thus, if the client wants advice as to the merits of a potential claim, they can give instructions to that effect. The client is in no way locked in to use the barrister for everything in a case. It may be that someone at the SME has some experience of running a small claim for themselves and the enterprise may want to save costs as much as possible by doing a large part of the work on the case in house. There is absolutely nothing to prevent that happening either.
Very often, the client wants help only in specific areas of the case. Accordingly, they can instruct the barrister to prepare the court files ready for trial in such a way that the judge will best be assisted. Or perhaps the client may want a final advice on whether a settlement proposal has merit.
In summary, the Bar is a rich repository of specialist knowledge and experience which has never been more easily accessible for businesses and individuals alike. The way in which the expertise of a public access barrister is used is entirely dependent upon the specific needs of the client and can be precisely tailored to meet those needs. The Bar is highly attuned to the needs of SMEs if for no other reason than each barrister is an SME in his or her own right. We know how SMEs operate, we understand their needs. The use of a public access barrister resonates with the core principles by which an SME operates: excellence of service combined with delivery on time at the lowest possible price.
Alistair MacDonald QC is chairman of the Bar