Issuing Documents in Court

Introduction

In October 2003, the Professional Conduct and Complaints Committee (PCC) and the Professional Standards Committee (PSC) considered the position under the Code of Conduct of Chambers issuing proceedings in court on behalf of solicitor clients. Both the PSC and PCC formed the view that this kind of conduct would be likely to breach the Code of Conduct. In particular, it would be contrary to Paragraph 401(b), as it would amount to the barrister, on behalf of whom the clerk was acting, conducting litigation and/or undertaking the administration and general conduct of a lay client’s affairs. It was likely that a barrister who allows their clerk to undertake this work would also find that Bar Mutual Indemnity Fund (BMIF) would not cover them in the event of any failure to issue the petition.

In November 2003, a letter was sent to all Heads of Chambers notifying them of the stance of the PCC and PSC and advising that barristers should not permit their clerks to issue proceedings for solicitors in this way.

As a result of this letter, the Bar Council has received a certain amount of correspondence seeking further clarification. In the light of this, it has been decided that further guidance should be issued.

This guidance will address the main areas where there appears to be some confusion over the position of the barrister and his clerk in issuing proceedings and in other related situations.

1. Lodging Bundles for hearings

It is proper for clerks to lodge bundles for hearings, provided that they are doing so on behalf of barristers. Barristers often draft the case summary, chronology etc; these are either contained within a separate bundle or are placed at the front of the main bundle. There is nothing wrong with clerks lodging either sort of bundle.

2. Covering applications to fix trial dates on behalf of solicitors

It is our understanding that clerks regularly fix trial dates to ensure that the date fixed is convenient for counsel instructed. They do so on behalf of barristers and as a result is permissible under the Code of Conduct.

3. Issuing applications for hearings, which will involve receiving a cheque from the solicitor to pay the fee on the application.

Issuing applications is the work of the solicitor and it would be unacceptable for a barrister or his clerk to do it. A barrister who carries out, or permits his clerk to carry out, such work would be in breach Paragraph 401(b) of the Code of Conduct. Moreover, issuing proceedings amounts to the conduct of litigation for the purposes of the Courts and Legal Services Act, self-employed barristers do not have the right to do so and would be likely to commit an offence if they did.

It is arguable that a barrister, in receiving the cheque to pay the court fee for issuing the proceedings, would be in breach of Paragraph 307 of the Code of Conduct, as barristers are not permitted to hold client money or security. There is no protection for the client if the barrister loses the cheque or is negligent and they would not be covered by the BMIF for this work.

If the lay client is present, it may be appropriate for a barrister to provide some general assistance to them in issuing the proceedings themselves but only if they have been instructed by a solicitor to do so. Again, the barrister should not hold the cheque or issue the proceedings on behalf of the client.

It follows that issuing claim forms is equally unacceptable.

4. Making representations to the Masters in relation to hearing dates

We understand that this is done regularly on an informal basis. If the Masters are prepared to hear the clerks on such applications, it is permissible, provided that they are doing so on behalf of a barrister.

5. Sealing Court Orders

Clerks regularly deal with the sealing of court orders. The Code of Conduct does not prohibit such work.

Conclusion

The above examples are not exhaustive but address the main issues of what is and what is not permitted by the Code of Conduct and/or statute. The Bar Council would be grateful if this guidance could be made available to all clerks and members of chambers.

If barristers or clerks have any queries they should contact the Professional Standards Department.

Professional Standards Department
May 2004