Conducting Litigation Guidance Flashcards
What is the guidance for?
- the BSB’s view on the activities that amount to the reserved legal activity of conduct of litigation
- how barristers can become authorised to conduct litigation; and
- how to determine whether a barrister is authorised to conduct litigation
By virtue of which statute is the conduct of litigation a reserved legal activity?
Under the Legal Services Act 2007
what is the consequence of a barrister conducting litigation without authorisation?
breach of the handbook and committing a criminal offence.
What is the conduct of litigation defined as?
- the issuing of proceedings before any court in England and Wales
- the commencement, prosecution and defence of such proceedings; and
- the performance of any ancillary functions in relation to such proceedings.
What case defines the term ancillary functions?
Agassi v Robinson
what is the definition of ancillary functions?
it is construed narrowly and limited to the formal steps required in the conduct of litigation
What does the BSB view to fall within the definition of conduct of litigation?
- issuing proceedings or applications
- filing an acknowledgement of proceedings
- giving their address as the address for service of documents
- filing documents at cour tor serving documents on another party
- issuing notices of appeal
- signing off on a list of disclosure; and
- laying of an information in a Magistrates court
What should a barrister do if they are asked to do any action that falls within the definition of conduct of litigation?
refuse to do it
Is the list given by the BSB exhaustive?
no
What must a barrister authorised to conduct litigation do?
- they must within an agreed timescale comply with any undertaking they give in the course of conducting litigation (Rule C11)
- this does not affect the prohibition on receiving or handling clients’ money, except as payment for fees.
- they must, if they are of less than three years’ standing, have a qualified person for conducting litigation at their principal place of practice.
What is not classed as conducting litigation?
- conducting correspondence on behalf of clients
- lodging documents for hearings
- skeleton arguments
- covering applications to fix trial dates
- court orders
- discharging a duty or a courtesy to the court
- signing a statement of truth
- instructing an expert on behalf of a lay client.
What are the ways that a barrister is able to conduct litigation?
- self-employed and employed barristers can apply to the BSB for an extension to their practising certificate, authorising them to conduct litigation
- employed barristers previously authorised to conduct litigation will retain their authorisation, proved that they remain in employed practice.
- by being entitled to conduct litigation under primary legislation
What needs to be satisfied for a barrister to apply for authorisation to conduct litigation?
- appropriate systems in their place of practice to enable them to conduct litigation
- the requisite skills and knowledge of litigation procedure to enable them to provide a competent service to clients; and
- adequate insurance. Members of the Bar Mutual Indemnity Fund are covered.
What types of roles enable barristers to conduct litigation?
barristers employed in Central government roes (including Crown Prosecutors).
What is the right to conduct litigation by primary legislation restricted to?
the barrister’s employment.
