Butler is one of a number of barristers who took advantage of this change and successfully applied to the BSB for authorisation to conduct litigation. Amanda de Winter, from York, is another. For her, the decision to apply was not just business; it was about self-preservation at a time when many members of the Bar are finding the market tough and unforgiving. “I am absolutely committed to the Bar, absolutely committed to the survival of the Bar. I’ll do anything to preserve that”, she says. “We just have to find a new way to do business.”
Barristers’ appetite for doing things differently is further revealed in a recently published study, commissioned by the BSB and Bar Council. It shows that one in seven barristers plan to apply for authorisation to conduct litigation. Such a move may not be for everyone, of course, but for many clients, being able to access directly – via the Public Access scheme – a barrister without the burden of having to undertake the litigation themselves could be attractive. This is especially so at a time when the financial climate is unpredictable and the number of litigants-in-person is rising.
The best interests of the client lie deep within barristers’ DNA and were central to the BSB’s decision to embed them in the Core Duties of the BSB Handbook. For de Winter, it was, she says, the “upfront contact” with clients that convinced her that direct access was the best way to run her business. Now that she is authorised to conduct litigation, she can help give clients what they want: that is, “to go for a barrister from the start”, and “a complete clarity of service”.
"The BSB’s view is that allowing barristers to apply for authorisation to conduct litigation will help to promote competition in the provision of one-stop advocacy and litigation services"
The BSB’s intention behind removing barriers to conducting litigation was to further aid flexibility for barristers. It seems to be having that effect. One barrister we spoke to who had been authorised to conduct litigation said that the combination of public access work and litigation can help members of the profession ensure their workload is more consistent – and secure. “The problem every barrister has is that your week can be full – then a couple of settlements and postponements and you are scratching around for work. The right to conduct litigation/public access fills in the gaps and provides a sort of safety net.”
It’s not for everyone, though, Butler observes: “People who want to do it need to be satisfied that they are procedurally rigorous…they will be subject to a new type of scrutiny.”
For some, this may take some getting used to. But, as one authorised barrister points out, “everything is difficult until you have done it a few times”.
Butler’s own experience of working in a solicitors’ firm proved particularly valuable – an experience he’d recommend for those interested in applying. “I’d encourage people [who want to do it] to spend some time gaining experience of working as a solicitor works.” However, the BSB does not consider it essential that applicants have such experience; those without it are very welcome to apply.
Those that do decide to apply will need to satisfy the BSB that they have appropriate systems in their place of practice to enable them to conduct litigation, as well the requisite skills and knowledge of litigation procedure to enable them to provide a competent service to clients. Adequate insurance is a must, too. Any practising barrister can apply – whether they hold a self-employed, employed, or dual capacity practising certificate. We asked one barrister whether he found the application process straightforward. “Yes,” he said. “Very.”
The BSB’s view is that allowing barristers to apply for authorisation to conduct litigation will help to promote competition in the provision of one-stop advocacy and litigation services. Ultimately, it should also assist access to justice for those lay clients who lack the expertise to conduct litigation themselves but whose case cannot bear the relatively high overheads, and does not need the resources, of traditional law firms. In removing the rule that previously prevented this, the BSB has helped barristers better equip themselves to meet the needs of clients in a competitive marketplace.
Competing directly with solicitors remains something that many members of the Bar may approach with caution. For de Winter, however, such caution ultimately proved unnecessary.
“Barristers are terrified that if they upset a solicitor, the solicitor will pull all their instructions. But this never materialised. The one firm of solicitors I was concerned about, I just went out and told them [I was doing public access work].”
Butler is more cautious. “Solicitors are a very important source of work,” he warns. “The Bar has to be careful not to park their tanks on the lawns of solicitors.” For him, there is clearly a difference between bloody battle and a bit of healthy competition. “I think it’s important to say to solicitors ‘there’s room in the market for both of us.’”