No contractual liability
- The basis on which the Barrister is instructed by an Authorised Person (whether a solicitor or other Authorised Person) is non-contractual and that is the intention of the Barrister who does not intend to create legal relations or enter into any contract or other obligation binding in law; no contract is created. (2) For the avoidance of doubt, neither the sending by an Authorised Person of a Brief or Instructions to a Barrister nor the acceptance by a Barrister of a Brief or Instructions nor anything done in connection therewith nor the arrangements relating thereto (whether mentioned in these Terms or to be implied) nor any agreement or transaction entered into or payment made by or under them shall be attended by or give rise to any contractual relationship rights duties or consequences whatsoever or be legally enforceable by or against the Barrister.
- These terms are intended to apply in any Case where a Barrister at One Crown Office Row [“1COR”] is instructed by an Authorised Person.
- Any Authorised Person who sends a Brief or Instructions to a Barrister at 1COR will be deemed to instruct that Barrister on these Terms unless and to the extent that the Barrister and the Authorised Person have agreed in writing, in relation to the particular matter, or generally, (a) that the Standard Contractual Terms for the Supply of Legal Services by Barristers to Authorised Persons 2012 (Annex T to the Bar Code of Conduct) shall apply, or (b) to exclude or vary these Terms.
- In these Terms of Business, the following words have the following meanings, except where the context requires otherwise:
- “the Authorised Person” the person who is an Authorised Person for the purposes of s. 18(1)(a) of the Legal Services Act 2007 and whose approved regulator under that Act is the Law Society and/or the SRA, and all successors and assignees;
- “the Barrister” the Barrister, practising as a member of the Bar of England & Wales, who is willing and able in that capacity to provide the Services in connection with the Case and in accordance with the Instructions from the Authorised Person on behalf of the Lay Client;
- “the Case” the particular legal dispute or matter, whether contentious or non-contentious, in respect of which the Barrister is Instructed to provide the Services;
- “the Code” the Code of Conduct of the Bar of England and Wales, as amended from time to time;
- “the Instructions” the Briefs, Instructions and requests for work to be done (and all accompanying materials) given by the Authorised Person to the Barrister in whatever manner to enable him or her to supply the Services, and “Instruct” and “Instructing” shall have corresponding meanings;
- “the Law Society” the Law Society of England and Wales
- “the Lay Client” the person for whose benefit or on behalf of whom the Barrister is Instructed by the Authorised Person to provide the Services (who may be the Authorised Person where the Case concerns the affairs of the Authorised Person )
- “the Services” the legal services provided by the Barrister in connection with the Case pursuant to the Instructions provided by the Authorised Person;
- “the SRA” the Solicitors Regulation Authority
- “1COR” One Crown Office Row chambers and its Annexe, Crown Office Row, Brighton.
- The Barrister looks for payment of his or her fees to the Authorised Person who instructs him or her and not to his or her Lay Client.
- Except in publicly funded Cases, the Authorised Person assumes personal responsibility as a matter of professional honour and good practice for the payment of a Barrister’s proper fees whether or not he has been placed in funds by his or her Lay Client.
- Where Instructions have been given in the name of a firm, all partners at that date accept the same responsibility for the payment of counsel’s fees incurred on behalf of the firm by a deceased bankrupt or otherwise defaulting former partner of the firm.
- The responsibility of a sole practitioner and of partners for the responsibilities and duties of their co-partners is a continuing one and is not cancelled or superseded by any transfer of the practice or dissolution of the partnership.
- An Authorised Person may in his or her capacity as a director partner member employee consultant associate or other agent of a company firm or other body brief or instruct a Barrister.
- In any case where a Barrister accepts a Brief or Instructions from an Authorised Person in his or her capacity as a director partner member employee consultant associate or agent of a company firm or other body:
- the Authorised Person warrants that he is authorised by his or her company firm or other body to instruct the Barrister;
- the responsibilities or duties of the Authorised Person under these Terms (including in particular his or her responsibility for the payment of the Barrister’s fees) shall be the joint and several responsibilities or duties of him or her and that company firm or other body.
- A Barrister has the duty or the right in certain circumstances set out in the Bar Code of Conduct to refuse to accept a Brief or Instructions and these Terms will apply only where the Barrister has accepted the Brief or Instructions.
- Notwithstanding that a Brief or Instructions have been delivered to a Barrister, the Barrister shall not be deemed to have accepted that Brief or those Instructions until he or she has had a reasonable opportunity:
- to peruse them;
- in the case of a Brief, to agree a fee with the solicitor.
- The Barrister accepts a Brief or Instructions upon the understanding:
- that he or she must and will comply with the Bar Code of Conduct;
- that he or she will deal with Instructions as soon as he or she reasonably can in the ordinary course of his or her work
- that he or she may return the Brief or Instructions in accordance with the Bar Code of Conduct, and that, if he or she does so, he or she will incur no liability to the Authorised Person under these terms as a result of so doing.
- No new instruction will be accepted from any Authorised Person whose name appears on the “List of Defaulting Solicitors and other Authorised Persons 2012” unless the barrister concerned instructs otherwise and cleared payment is received in advance of the work being conducted. Any Authorised Person added to the “List of Defaulting Solicitors and other Authorised Persons 2012” will be expected to pay any fees outstanding at that time within 7 days.
- Urgent matters: Where, for any reason, time is of the essence, the Authorised Person must, at the time when he or she delivers the Brief or Instructions but separately from the Brief or Instructions themselves, inform the Barrister of that fact and of the particular reason for urgency in order that the Barrister may decide whether in those circumstances he or she can accept the Brief or Instructions. In addition the Brief or Instructions must be clearly marked “Urgent”.
Copies of Briefs, Instructions & Records of Advice
- A Barrister shall be entitled for the purposes of his or her records (but not otherwise) to retain his or her Brief or Instructions or any papers delivered therewith or (if the Authorised Person requires the return of such brief or Instructions and papers) to take and retain a copy of such Brief or Instructions and papers and of any written advice PROVIDED that nothing shall entitle a Barrister to exercise any lien over any Brief, Instructions or papers.
- Save in the case of publicly funded work, a Barrister and Authorised Person may (subject to any rules regarding contingent fees) make such agreement or arrangement between them as to the time or times, whether at the time of delivery of the Brief or Instructions or subsequently thereto or otherwise, at which the Barrister’s fees shall be paid as they may think fit and the Barrister’s fees shall be paid by the Authorised Person accordingly PROVIDED that every such agreement or arrangement shall be in writing.
- Save in the case of publicly funded work or in the case of work the fees for which are to be paid out of a fund but cannot be so paid without an order of the court a Barrister may require his or her fees to be agreed and paid before he or she accepts the Brief or Instructions to which the fees relate.
- (1) FEES (and/or charging rates shall be):
- as agreed between the Barrister and the Authorised Person before the Barrister commences work under the Brief or Instructions; or
- in default of such agreement, a reasonable professional rate for the Barrister instructed.
(2) COURT HEARINGS: the basis for fees to be charged will, where practicable, be agreed in advance of the hearing. Fees for court work take into account the following factors:
- estimated time required for preparation
- estimated time to be spent in Court
- case complexity
- the amount / issues at stake
- seniority of the barrister
- whether an abnormal workload was placed on the barrister through late instruction / urgency of the work etc
- the degree to which specialist knowledge is required
- travelling / expenses likely to be incurred
(3) PAPERWORK: normally, fees for paperwork are not agreed in advance; however, if an estimate is required, the clerks (in liaison with the barrister concerned, if necessary) will provide an approximate fee. The following factors are taken into account when providing such estimates and when compiling the fee-note:
- total time taken to complete the work
- complexity of the matter
- the amount / issues at stake
- seniority of the barrister
- the urgency of the work and the need to reschedule other matters
- the degree to which specialist knowledge is required
- All time spent is recorded on 1COR’s computerised diary system to ensure that the fees charged can be substantiated by specific work activities by the Barrister. If requested, the Clerks will be able to explain further how the fee was calculated.
- (ii) The Clerks will render a fee note for the work upon conclusion of the case or, on request, should there be a pause in proceedings or at an appropriate stage in on-going litigation (see paragraph 19 below).
- (iii) On privately funded cases, it is generally expected that his or her fees will be settled within 30 days of the date of our fee note. 1COR has in place with some.
clients and is prepared to agree arrangements for longer periods for the settlement of fees in exceptional cases.
- (1) The Barrister will submit an itemised fee note not later than three months after the work to which the fee note relates has been done or at the conclusion of the matter in which the Barrister is briefed or instructed whichever is the sooner.(2) The Barrister shall as soon as reasonably practicable comply with a request by the Authorised Person for a fee note.(3) Every fee note shall include the Authorised Person’s reference and (where appropriate) the Barrister’s case reference number, the Barrister’s relevant account number for the purpose of receiving payment in publicly funded cases and (if known to the Barrister) any relevant public funding certificate number and date of issue.
(4) The Authorised Person shall as soon as reasonably practicable inform the Clerks that the case has concluded. Publicly Funded work and certificates:
- In the case of publicly funded work, the Authorised Person must at the time when he or she delivers the Brief or Instructions (or if any relevant certificate is not then available to him or her as soon as reasonably practicable thereafter) supply the Barrister with copies of any relevant public funding certificates.
- In the case of publicly funded work:
- The Authorised Person and Barrister shall respectively take such steps as may be open to each of them to take under the applicable Regulations for the time being in force for the purpose of obtaining payment of the Barrister’s fees as soon as reasonably practicable;
- The Authorised Person shall as soon as reasonably practicable comply with a request by the Barrister for information by;
- notifying the Barrister of the date of issue and number and supplying the Barrister with copies of any relevant public funding certificates.
- notifying the Barrister of the date of any order for assessment of costs under the relevant certificate or other event giving rise to a right to such assessment.
- informing the Barrister of the steps taken by him or her pursuant to paragraph 21 (1) hereof.
Fees which are to be paid out of a fund
- In the case of work the fees for which are to be paid out of a fund but cannot be so paid without an order of the court:
- The Authorised Person shall use his or her best endeavours to obtain such order or orders as may be requisite to enable payment of the fees to be made as soon as reasonably practicable;
- The Authorised Person shall as soon as reasonably practicable comply with a request by the Barrister for information by informing the Barrister of the steps taken by him or her pursuant to paragraph 22(1) hereof;
- The Barrister’s fees shall be payable one month after the making of the order of the court required for the payment of such fees out of the fund. Challenges to the Barrister’s fees.
- Subject to any such agreement or arrangement as is referred to in paragraph 16 hereof the Barrister’s fees if and to the extent that such fees have not been previously paid shall unless challenged by the Authorised Person as hereinafter provided be paid by the Authorised Person within three months after the fee note relating thereto has been sent to the Authorised Person whether or not the Authorised Person has been placed in funds by his or her client and whether or not the case is still continuing.
- (1) Any challenge by an Authorised Person to a Barrister’s fee (whether giving rise to an issue of competence or a dispute on quantum or otherwise) must be made by the Authorised Person in writing within three months after the first fee note relating to that fee has been sent to him or her.(2) No challenge to a Barrister’s fees will be accepted by the Barrister unless:
- the challenge was made in accordance with paragraph 24(1) hereof; and
- the solicitor has within 14 days of being requested to do so either by the Barrister agreed in writing (i) to submit the issue or dispute giving rise to the challenge to the decision of a Voluntary Joint Tribunal and (ii) to abide by and forthwith give effect to the decision of that Tribunal.
(3) If a dispute is referred to such a Tribunal in accordance with paragraph 24(2) above:
- (i) The Tribunal shall act as experts and not as arbitrators and its decision shall be conclusive, final and binding for all purposes upon the solicitor and the Barrister.
- (ii) No payment need be made in respect of the fees (unless the Tribunal orders an interim payment) until the Tribunal has made its decision and communicated it to the parties.
(4) Unless the Authorised Person has challenged the Barrister’s fees and agreed to submit the issue or dispute in accordance with paragraphs 24 (1) and (2), the fees will be payable in full, without any set-off whatsoever, in the amount set out in the relevant fee note and at the time specified in paragraph 23 above.
Confidential Information & Publicity
- (1) The Barrister will keep confidential all information provided to him or her in connection with the Case unless:
- he or she is authorised by the Authorised Person or the Lay Client to disclose it;
- the information is in or comes into the public domain without any breach of confidentiality on the part of the Barrister; or
- he or she is required or permitted to disclose it by law, or by any regulatory or fiscal authorities, in which case, to the extent that he is permitted to do so, he will endeavour to give the Authorised Person and/or the Lay Client as much advance notice as possible and permitted of any such required disclosure.
(2) The Barrister owes the same duty of confidentiality to other lay clients, and will therefore not disclose or make use of any information that might be given to him or her in confidence in relation to any other matter without the consent of his or her other lay client, even if it is material to providing the Services.
(3) Unless the Authorised Person expressly informs the Barrister to the contrary in advance in writing, the Barrister may allow the Instructions to be reviewed by another barrister or by a pupil (including a vacation pupil or mini-pupil) in chambers, on terms that that other barrister or pupil complies with paragraph 25(1).
(4) Subject to his or her obligation under paragraph 25(1), the Barrister may make and retain copies of the Instructions and any written material produced by him or her.
(5) To the extent such information is already in the public domain, the Barrister may disclose in his or her marketing and similar materials, and to prospective clients and publishers of legal directories that he or she is or has been instructed by the Authorised Person and/or for the Lay Client and the nature of the Case.
(6) To the extent any such information is not already in the public domain, the Barrister may only refer to it for marketing purposes in a form which sufficiently preserves the Lay Client’s privilege and confidentiality and (where the law so requires) with the Lay Client’s consent.
- The Barrister is a data controller for the purposes of the Data Protection Act and is bound by the Act amongst other things, to take appropriate technical and organisational measures against unauthorised processing of personal data and against accidental loss or destruction of, or damage to, personal data. He or she is entitled to process (which includes obtaining, consulting, holding, using and disclosing) personal data of the Lay Client, the Authorised Person and others to enable him or her to provide the Services, to liaise with the Authorised Person in respect of the Lay Client’s case or on the Lay Client’s behalf, to maintain and update client records, to produce management data, to prevent crime, to publicise his or her activities as set out in paragraph 25 (5) and (6) above, to comply with regulatory requirements and as permitted or required by law. The Lay Client and the Authorised Person each have a right of access and a right of correction in respect of their personal data which the Barrister holds about them, in accordance with data protection legislation.
Intellectual Property Rights
- The Barrister does not give consent for the use of his or her work on the Authorised Person’s internal databases or intranets. The Barrister’s legal liability in respect of his or her work is limited to the lay client for whom it was prepared and to the particular case concerned. Any unauthorized use of his or her work is a breach of his or her copyright in it.