You wait years for one to turn up, and then two turn up at the same time. There have been two significant developments in public access in recent months, both of which arise out of decisions of the High Court. Both have significant implications for public access barristers.

Conduct of litigation ‘in the round’

The first is the case of Baxter v Doble [2023] EWHC 486 (KB). Andrew Granville Stafford, my colleague in Chambers and fellow trainer of public access barristers, has written a blog post on this for the Bar Council which I will not seek to better (‘If it looks like a duck – the new test for conducting litigation?’). In summary, Mrs Doble is a member of the Chartered Institute of Legal Executives. She set up a business advising and assisting landlords who were having difficulties with tenants. She was not authorised to conduct litigation. She assisted a landlord in possession proceedings against Mr Baxter, which were successful. Mr Baxter then applied to commit Mrs Doble, and her business, for contempt of court on the basis that she had conducted litigation in the course of her assistance in that matter.

The services provided by Mrs Doble were the provision of legal advice about the merits of the claim; drafting and serving notices under ss 8 and 21 of the Housing Act 1988; corresponding with Mr Baxter’s solicitor; drafting a claim form and particulars of claim, and then posting them to the court (signed by the client); paying the issue fees; signing a certificate of service; instructing an advocate for the hearing; drafting witness statements and posting them to the court; drafting an application notice and draft order; drafting the reply and defence to counterclaim and arranging for a process server to effect personal service; and drafting the case summary for the case management conference.

Cavanagh J noted that the statutory language in respect of what amounted to the conduct of litigation was not as helpful as it might be in providing the answer to borderline cases. The central question in the case was what was meant by ‘the commencement, prosecution and defence of proceedings’ which was inserted into the previous definition by para 4 of Sch 2 to the Legal Services Act 2007. He noted (at 179) that it is also very difficult to identify a clear dividing line between what does and does not amount to the conduct of litigation from a review of the authorities.

He went on to identify four key points of general principle from those authorities:

  1. The starting point must be the statutory language itself, and the statutory words must be given their natural and ordinary meaning.
  2. This is penal legislation, which is relevant when interpreting the legislation.
  3. Substance must prevail over form.
  4. The question is one of fact and degree in every case.

Cavanagh J held that the actions of Mrs Doble in relation to the pleadings amounted to the conduct of litigation, predominantly in respect of the delivery of the pleadings in circumstances in which it was a requirement of the court process. This was not surprising. However, Cavanagh J went on to note that in isolation, the giving of legal advice, the drafting of notices, or steps prior to proceedings, were not the conduct of litigation, but ‘this does not mean that the fact that a respondent has given legal advice or has taken steps before proceedings are issued, such as drafting the claim form and particulars of claim, is irrelevant to the question whether they are engaged in the conduct of litigation. It may contribute to the bigger picture and may, in particular, shed light on whether steps that were taken at a later stage in the proceedings were purely mechanical or clerical’ (at 207). The court should look at the entirety of the activities undertaken by Mrs Doble to assist her client and then decide whether ‘taken in the round’ they amount to the conduct of litigation.

This is potentially concerning, as it appears to suggest that if public access barristers take steps that individually do not amount to the conduct of litigation, this could cumulatively amount to such conduct. However, my view is that what Cavanagh J was referring to in this regard was not that matters that do not amount to the conduct of litigation can together amount to it; rather, if there is a question that there has been the conducting of litigation, looking at matters in the round will assist the court in determining this. However, to be safe, public access barristers may wish to consider obtaining authorisation to conduct litigation.

Fee arrangements and right to payment

The second case is Glaser & Another v Atay [2023] EWHC 2539 (KB). The claimants are barristers. The defendant was pursuing financial remedy proceedings against her wealthy husband and entered into an agreement with the claimants to instruct them for the pre-trial review and 10-day final hearing on a public access basis. It appears that the model client care letter (or something close to it) was used. This set out the fees charged, with a series of instalment payments, all to be made prior to the commencement of the final hearing. The total sum was £162,000. The letter provided that: ‘For the avoidance of doubt, the fee covers the above mentioned work and therefore if the hearing concludes early or is adjourned to another date or does not go ahead for any reason beyond our control, then the full fee is still payable and another fee will be payable for any adjourned hearing.’

Turner J noted that ‘[t]he Judge below observed, in my view reasonably, that “given the significant sums involved one would have expected a more carefully thought through document”’. The claimants had asserted that the rolling-up of the refreshers into a fixed fee arose from the prohibition on barristers holding client money. After considering the provisions of the Consumer Rights Act 2015, he cited gC107 (the much-criticised guidance that suggests that a barrister can agree an up-front fixed fee together with an undertaking to pay as a separate and independent obligation to the client a sum equivalent to the difference between that fixed fee and what would have been earned on a time basis). He upheld the decision of the judge below that the term as to timing of payment and the consequences of the trial not going ahead created a significant imbalance in the parties’ rights and obligations. The financial risk was borne entirely by the defendant. The term was an all or nothing term weighing 100% in favour of the barrister to the clear detriment of the consumer. It was thus unfair and unenforceable. Further, as the entire obligation included attendance at trial, which was incapable of being fulfilled, there was no contractual right to payment at any time, and no legal basis for a quantum meruit assessment.

The question is the extent to which this determination relates to lower fees and shorter hearings. Presumably a deemed date on which a brief fee falls due remains permissible. The concern of the court appears to have been the all or nothing element particularly of rolling up the refreshers. While gC107 remains dangerous, requiring payment of the refresher when it is clear that day 2, 3, 4 etc will be taking place (so by, for example, 5pm the night before) may be a way forward. However, this decision clearly causes concern. Whether the Bar Standards Board issues further guidance is of course a matter for them, but the Direct Access Panel and other elements of the Bar Council are working to provide further guidance. Watch this space.