In English civil trial practice when does a barrister become involved?

Question

In U.S. civil trial practice, the same legal professional, an attorney, or firm of legal professionals, usually handles a case from first client contact through trial and often appeals (if any) as well.

But, in English law, the roles of attorneys in the U.S. are filled by more than one kind of legal professional and there is a distinction between barristers, who are legal professionals who mostly handle trial practice, and solicitors, who are legal professionals who do other kinds of legal work. I am generally familiar with the routes by which one enters each profession.

It isn't clear to me, however, how the lines are drawn between the two professions in the context of civil litigation.

For example, suppose that you have a medium sized business (e.g. 100 employees and several business locations with no in house counsel) with a regular outside solicitor or firm of solicitors that it employs.

Suppose that business gets into a serious business dispute with another business, e.g. a joint venture gone bad with related accounting and trademark issues involving hundreds of thousands to million of pounds in controversy economically. (The example is from a case I handled in the U.S. allowing me to compare it, but any serious civil dispute could do. I limit the question to serious civil disputes because I understand that solicitors can handle civil litigation in some minor civil litigation.)

At what point in time is there a transition from a solicitor to a barrister?

When would a client start with a barrister in the first place?

What kind of legal professional (barrister or solicitor) would represent a client in an arbitration or mediation proceeding in which no court case has been opened?

Would a medium sized business in the example above that gets into lawsuits once every year or two typically have a regular barrister (or firm of barristers) that they would use, or would this choice usually be made on a case by case basis?

Also, please feel to correct any of my assumptions if they are incorrect.

Answer 1

Barristers are advocates, and their other roles fall out of that core role. I think of it this way: your solicitor takes care of your legal risk; your barrister is the 'big gun' you bring in for specific important legal advice and to represent you in person.

I'll give you my experience from the perspective of working in a large government agency. For us, 'barrister' often equates to 'Queen's Counsel' (now called 'Senior Counsel'), which is a particularly senior barrister.

I am also speaking from Australia. We have the same split profession as the UK, but there are probably differences.

You generally don't stop using a solicitor and start using a barrister. Rather, you have a solicitor the whole way through and then you engage a barrister through your solicitor.

You can engage a barrister directly, e.g. if you have in-house counsel, but it is not common to do so. Even if you have in-house counsel, you will usually engage more specialised external solicitors to handle litigation.

The barrister's role is generally to (1) provide advice on specific issues (after the solicitors have sifted the evidence and provided a brief to the barrister) including advising on your prospects in particular litigation and (2) represent you in court i.e. write submissions and speak to the court.

It is not uncommon to have a barristers represent you in proceedings other than a trial (if you have the financial resources to afford a barrister). For example, a barrister may represent you in mediation or may accompany you to an examination by some regulatory authority. (Furthermore, a regulatory authority may even hire a barrister to question you, since barristers are often good at that based on their in-court role; or you and the party you are having a dispute with might appoint a barrister as the arbitrator or mediator.)

You may have a barrister you prefer to use; more likely, however, your solicitor would know barristers and would recommend an appropriate one. Barristers are specialised so you would use a different barrister for a tax dispute, contractual dispute, employee dispute, etc. An organisation large enough to sustain constant legal disputes would have a number of barristers that it would go to as and when they were needed, on the basis of their particular skills and availability.

There is no such thing as a firm of barristers. Each barrister is independent. A barrister's office will be in 'chambers', which is an organisation that leases office space and hires clerks to manage member barristers' business. But the barristers in a chambers are not in business together as members of a firm of solicitors are. Barristers are proud of their independence, and they all want to be appointed as judges so they have to appear impartial.

To further illustrate how you might use a barrister: sometimes you get legal advice from a barrister and you cannot read the advice. You can see the words but it's gibberish. Your solicitor will interpret it for you.