Tips for clients when dealing with a Direct Access barrister

 

With the changes in legal market, the Bar has been making huge improvements to improve access to justice. One of the major changes is called Direct Access or Public Access, meaning that lay clients can obtain barristers’ services directly to make the process more cost-effective and efficient. Even though this has been available since 2004, it is still relatively new territory for lay clients who are new to the concept of Direct Access services from their barrister.

I know this because I was one of those lay clients. Having been through several legal disputes in my business, and, having used both the traditional and new routes to legal advice, I experienced first hand the benefits of Direct Access and how it can improve the client experience. It is these experiences that inspired us to establish ShenSmith Barristers, to offer Direct Access legal services to many other lay clients who found themselves in a similar position.

Here are a few tips that I picked up over the years having been on both sides of the fence.

  1. Be prepared. I understand only too well that legal disputes, of any sort, are always unpleasant. Most people therefore tend to ignore the problem for as long as possible to avoid thinking about it, which is understandable. However, ignoring the problem usually means you will be running around at the very last minute, trying to get documents together and find an available barrister to represent you at the hearing. So I would advise you to deal with the issue immediately and head-on, however uncomfortable, so that you have plenty of time to prepare your case properly.

  2. Be organised. Have all of your documents and information prepared so that you can get your hands on it when ready to present them to your barrister. Your barrister will guide you as what he or she will need and do your best to have the information ready for your case.

  3. Choose your barrister by his/her experience, not just fees. There are a few Direct Access portals in the market now, which offer the general public a wide range of barristers and their services. Some lay clients use this as tool to shop for the cheapest legal services. Whilst this is often a very reasonable way to get the best value for your money, but as we all know, cheap doesn’t always mean it is the best option. So clients should focus on the barrister’s experiences and how responsive they are rather than simply considering their fees.

  4. Talk to your barrister (or barristers if your case requires more than one counsel)  to get a good feel about the barrister who will be handling your case. You need to feel comfortable and confident about talking with your barrister.

  5. Be honest, open and upfront with your barristers. In hopes of obtaining a desirable result, some clients withhold certain information during the legal process, in the hopes that it will not impact their case. While this can be an appropriate strategy, in specific circumstances, it is normally a dangerous decision because the barrister may miss important strengths/weaknesses of your case. Not only that, barristers have a duty not to mislead the court, so if and when undisclosed facts surface, they may well have to withdraw their services, which can leave the clients in the awkward position of being unrepresented. So, it is important that you are honest and upfront with the information you have.

  6. Manage your expectations. Almost everyone in a legal dispute wants, and often believes their case to be a strong one. In reality, however, one side will quite often come off worse than the other, or at least not outright win. Most barristers like to go through the case to decide its merits. Some cases will have no merit or basis in law at all. In these cases, the barrister will strongly advise that the client settle the matter at the earliest opportunity in order reduce costs. However, most clients have been emotionally invested in their case for some time and find it hard to let go. If you find yourself in this position, we would strongly advise you to trust your barrister’s advice. If you are still in doubt, you can always seek a third opinion from another barrister, but this will more often than not reiterate the original opinion.

  7. Be prepared to move on. Win or lose, there is always damage left behind. This may be financial, emotional and even physical damage or any combination of those. When you are immersed in the problem, it will always feel even bigger and heavier than it actually is. So when the case concludes, either way, you must allow yourself to draw a line under this chapter of your life and move on.  

 

Our planning permission objection experience

We always thought our relationship with our neighbours was good; we had always been doing everything we possibly could to sort out any potential problems, including paying for new fences or trimming trees that wasn’t really our responsibility. This all changed when our neighbours submitted a planning permission for their house, but refused to compromise on what they wanted – despite it breaking several strict rules by a considerable margin.

We had some extension work done ourselves just before all this happened. However just prior to submitting our planning permission to the planning department of the local council, we informed our immediate neighbours our intention and plan, pleasantly, everyone was supportive as this plan didn’t affect anyone in anyway. However, when our next door neighbour submitted their planning application for some building work, we were completely in the dark, until we were informed by the council. Straight away, we felt a bit uncomfortable as they didn’t return the courtesy of tell us what they were planning.   

We contacted them to say that we had been notified by the council about to their planning application. However, due to the position and orientation of our house in relation to theirs, from our point of view, their proposed building work would block out all sunlight in our garden. Since ours is a south facing garden it would have quite a big impact. We asked whether they would come around for a glass of wine to talk about a compromise so that they could get their planning passed but with a lesser detrimental effect to our property. The reply from the husband of the neighbours was ‘No, I am an architect, I know it breaks the rules but I fully intend to “play the system”’. We had no choice but to reply, ‘with great regret, we have to object to the application, as the current plan will affect our properly greatly.’ The neighbours immediately kicked up a fuss, as we were no longer just saying ‘yes’ without question. Naturally, we were very disappointed by their reaction, giving what we had done in the past and this was the one and only time that we asked for a compromise solution instead of of doing it their way.

With the mixed bag of emotions, we personally went through the local council’s planning guidelines, and highlighted the sections that indicated where our neighbours’ application was breaking the rules (by more than 3 metres). In the meantime, we consulted a planning barrister and a property barrister for advice as where we stood legally. The advice we took away from both barristers are: 1) that we have to be reasonable during the whole process, regardless of personal feelings; 2) that we should outline our objection rationally, and quote the guidelines as clearly as we could to support our arguments; 3) we cannot simply say ‘we don’t like it’, rather, we have to state why this application is not acceptable based on guidelines and law; 4) we have to keep our points precise and relevant, and not go into any personal details which have no bearing in the application, only the points for the planning officer to consider;  5) finally, the planning barrister advised us on planning related law, and the properly barrister advised us the properly related law, which we can use to support our arguments.

We took the advice from the barristers, then drafted a formal objection which outlined all of the rules the neighbour’s planning application broke. The planning objection was strong and reasonable. Our two barristers read the objection – both considered it to be clear and reasonable. The planning officer rejected their planning as a result of a clear, precise and well reasoned objection.

What we learnt from this experience is that 1) being nice and reasonable doesn’t mean you should compromise your own principles or benefits to please others; 2) ask for help from  professional experts when you feel you need to; 3) take your emotions out of the equation when you outline your position, and only deal with the points which are relevant to your case.

Written by: A direct access client.