Chapter 3Resolving disputesprinciple, the barrister must accept the work subject to
his availability and the negotiation of a proper fee.
Traditionally, barristers have not stood in a contractual
relationship with the solicitors who briefed them. The
fee was regarded as an ‘honorarium’, and as a result
barristers could not sue solicitors who were reluctant to
pay, although the same solicitors could bring an action
against recalcitrant clients. Section 61 of the Courts and
Legal Services Act 1990 abolished any common law rule
preventing a barrister from entering into a contract for
the provision of his services, although the General
Council may continue to make rules prohibiting barris-
ters from entering into contracts.
Until recently, both solicitors and barristers were
immune from actions in negligence arising from the
conduct of a case in court or work immediately preparat-
ory to such a case. However, in Arthur Hall and Co v
Simons(2000) the House of Lords decided that the
immunity could no longer be justified. Both branches of
the legal profession can be liable in negligence now for
all aspects of their work.
In the past, a barrister could only be instructed by a
solicitor. Clients did not have direct access to the barris-
ter’s services. The rules have now been relaxed to allow
certain organisations and individuals to instruct a bar-
rister directly on their own behalf or on behalf of clients.
The Bar Council has set up the BarDIRECT scheme
under which suitable organisations and individuals with
expertise in particular legal matters (e.g. the Association
of Building Engineers, Chartered Insurance Institute,
Free Representation Unit) may apply to the Bar Council
for a licence to instruct barristers directly for either
advice or representation or both in those areas. In addi-
tion, members of some professional bodies such as the
Institute of Chartered Accountants and Institution of
Chemical Engineers, and ombudsmen, e.g. the Banking
Ombudsman, may instruct barristers directly to obtain
advice or representation for non-court litigation and in
tribunals and magistrates’ courts under the Direct Pro-
fessional Access (DPA) scheme.
The Legal Services Act 2007, which received the Royal
Assent on 30 October 2007, reforms the regulatory
framework for legal services in England and Wales. In
2003 the government appointed Sir David Clementi to
undertake an independent review of the regulation of
legal services. He raised concerns about the regulat-
ory framework, the systems for handling complaints and
the restrictions on business structures. The government
published a White Paper in 2005 (The Future of Legal
Services: Putting Consumers First) in which it proposed
a new regulatory framework in the form of a Legal
Services Board and an Office for Legal Complaints, and
taking steps to enable legal services to be provided by
alternative business structures.
The main provisions of the Legal Services Act 2007
are as follows:
■The establishment of the Legal Services Board (LSB) to
oversee the approved regulators of reserved legal activ-
ities, such as the Law Society and the Bar Council.
■Reserved legal activity includes the exercise of a right
of audience; the conduct of litigation; reserved instru-
ment activities (e.g. a contract for the sale or other
disposition of land); probate activities; notarial activ-
ities; the administration of oaths. It will be an offence
for a person to carry on a reserved legal activity if they
are not entitled to do so.
■The LSB has the duty to promote the regulatory
objectives which include protecting and promoting
the public interest; supporting the rule of law; im-
proving access to justice; protecting and promoting
the interests of consumers; promoting competition
in the provision of legal services; encouraging an
independent, strong, diverse and effective legal pro-
fession; increasing public understanding of their legal
rights and duties; promoting and maintaining adher-
ence to the professional principles by those providing
legal services.
■The LSB will have a number of powers and sanctions
available to it, including making directions, public cen-
sure and financial penalties, to ensure that approved
regulators are meeting these objectives.
■The LSB is required to establish a Consumer Panel.
■The LSB will establish an independent Office for Legal
Complaints (OLC), which will operate an ombuds-
man scheme for complaints about legal services. This
will replace the schemes currently operated by ap-
proved regulators.
■Provision will be made for licensing new Alternative
Business Structures (ABS) to enable, e.g., lawyers and
non-lawyers to work together to deliver services. The
LSB will supervise licensing authorities and, in the
absence of an appropriate licensing authority, can
license ABS firms itself.
The LSB and OLC are not expected to be fully opera-
tional until 2010.