Direct access barrister rules

[charitynjw]

My recommendation is always to keep your eye on the ball of proving your case. When I did litigation, I was always happy when the opposing party allowed itself to be distracted from that.

I definitely agree with that.

The 'conducting litigation' issue is only a potential background matter.
I much prefer to argue the facts & law concerning the claim & the allegations made by the Claimant (or more likely, by Mr Barrister himself).

[charitynjw]

If it bothers you that much then you could, on the basis that they are being extremely evasive and non-responsive to what should be a very straightforward answer to a simple question:

1. Report the person to the BSB on the basis they are representing themselves as a barrister authorised to conduct litigation when you have reasonable to suspect they are not. If they are not listed on the BSB register then you can point to that as evidence they are conducting reserved legal activities contrary to the Legal Services Act 2007 (I am assuming you have asked them in what capacity they are acting and if they do act as a barrister then you have requested their BSB number as evidence).

2. Put them on notice that due to their evasiveness as to their capacity, whether an employee or a self employed barrister, you have reason to suspect that said person is committing a criminal offence under the LSA 2007 by carrying out reserved legal activities contrary for which they are not authorised to do so that you will ask the court to prohibit said person from acting on behalf of the company in said proceedings, and you will produce this letter/email together with other relevant correspondence as evidence that that there is good reason to suspect they have committed and are continuing to commit an offence by conducting litigation when challenged as to the legal basis on which they are acting. Invite them to withdraw from acting and confirm the same by email/letter.

Leave it at that and raise it at the start of proceedings if you wish but probably best to submit that issue as a preliminary point to be discussed as part of a letter to the court (make sure to copy the other side in if emailing the court) or a skeleton argument. The onus will be on that individual to prove what they are doing is not a criminal offence.

Unfortunately, unless you are prepared to make an application for committal in the High Court, it's unlikely much will be done other than the BSB may investigate and/or take no further action.

Cheers for that, R0b.
If anything, I will only mention it at the hearing.
This issue has been ongoing for well over 2 years now, & will have a knock-on effect on many people should it go my way, so I don't want to jeopardise the meaty bits of the case.
I would imagine that any appearance (if any) for the Claimant at the hearing will be a solicitor's agent.

[Manxman]

If it bothers you that much then you could, on the basis that they are being extremely evasive and non-responsive to what should be a very straightforward answer to a simple question:

1. Report the person to the BSB on the basis they are representing themselves as a barrister authorised to conduct litigation when you have reasonable to suspect they are not. If they are not listed on the BSB register then you can point to that as evidence they are conducting reserved legal activities contrary to the Legal Services Act 2007 (I am assuming you have asked them in what capacity they are acting and if they do act as a barrister then you have requested their BSB number as evidence)....

Perhaps I've misunderstood, but the OP isn't suggesting that this person is "...representing themselves as a barrister authorised to conduct litigation ..." are they?

All I've understood from the OP is that the individual in question has signed the court claim and witness statement as "John Doe on behalf of XYZ Limited". Couldn't any employee of the company (or anyone else) be properly authorised to do that - irrespective of whether they have a legal qualification, an accountancy qualification or are the company secetary?

I presume the OP is aware somehow that this individual is a barrister - but so what? Whether he's an employee or an independent legal representative, is he conducting litigation on behalf of the company?

[R0b]

Manxman,

The original post had stated the barrister is conducting litigation on behalf of the company but not clear whether or not it was a self-employed barrister or an in-house barrister employed directly by the company.

Conducting litigation is a reserved legal activity under the Legal Services Act 2007 which includes issuing proceedings, preparing, drafting statements of case such as claim form, defence etc. or any ancillary functions related to legal proceedings. If you are not authorised to conduct litigation, you are committing criminal offence. If I recall, authorisation is limited to, fully qualified barristers, solicitors, CILEX and those who are employees of the company who is a party to proceedings.

Saying you are signing something on behalf of the company does not necessary mean you are an employee of that company, you could be an agent or in this case a legal representative not employed directly by the company.

You are correct though, if the person is an employee then he will be covered by the authorisation of the company to conduct litigation, but having said that, documents containing statements of truth should be signed by a manager of the company which is someone in a senior position. Alternatively, in-house legal representatives can also be authorised to sign statements of truth. I don't believe an accountancy firm is entitled to act on behalf of the company conducting litigation - I believe there are recent court cases on this point around the use of third party companies representing claimants/defendants.

In reality, it's a nit-picking point but the individual should have no real reason to avoid a simple question of whether or not the person is authorised to conduct litigation either as a legal representative or an employee of the company. If the person is being evasive and hostile and refusing to answer the question that would in my mind be enough to suggest the person may be doing something he knows he shouldn't, otherwise what's the problem in giving an answer? One could argue that the person is acting contrary to the overriding objective and in breach of their code of practice for barristers.

The thing with barristers is that, you are entitled to call yourself one if you have been 'called to the bar' but that is not the end of it. You have to complete the vocational element which is the 12 month pupillage before you are 'fully qualified' and authorised to conduct litigation, otherwise you are classed as an 'unregistered barrister'. I believe unregistered barristers are required to disclose as such to their clients before providing services.

If the person is not authorised, the court should not be allowing someone to conduct litigation unauthorised and as such and it's a fair point to raise but in the context of small claims, most judges just don't have the time to deal with that kind of argument unless raised in advance or by way of application to the court.

[charitynjw]

R0b
Manxman

It is unclear from any documentation whether the barrister in question is an employee (though I doubt that is the case), or whether he is acting as a retained (direct access?...no solicitor involved) entity.
Tbh, I think that the situation has been made deliberately obscure.
From what I've read, the former position (employee) requires that the firm itself either has to have a Bar Standard licence, or at least one-off authorisation.
I also believe that a (non employee) direct access barrister has to abide by the BSB Handbook, which appears to state that to accept clients on a direct access basis, permission/authority from BSB is needed.
I have been in contact with Bar Standards, but their response is couched in technical language which is a bit difficult for me to follow.
Whatever happened to plain intelligible, lol.