Authorisation to conduct litigation – guidance for applicants
Do I need to be authorised to conduct litigation?
1. The new BSB Handbook allows both self-employed and employed barristers to be
authorised to conduct litigation. Employed barristers who are already authorised to
conduct litigation will retain their authorisation, provided that they remain in employed
practice. Other barristers will be able to apply for authorisation from 22 January 2014.
2. Authorisation to conduct litigation is an additional authorisation which can be added
to your rights to practise and to your practising certificate. It is optional and you will
need to decide whether you need it for your practice or employment.
What is the conduct of litigation?
3. The conduct of litigation is a ‘reserved legal activity’ in the terms of the Legal
Services Act 2007. This means that it can only be undertaken legally by a person
who is authorised to undertake that activity. The Bar Standards Board (as a relevant
“approved regulator”) is entitled to authorise barristers to conduct litigation.
4. It is important to distinguish the conduct of litigation from the exercise of rights of
audience, and other reserved legal activities. A barrister’s entitlement to exercise
rights of audience does not entitle him or her to conduct litigation.
5. The Bar Standards Board does not itself define what is meant by conducting litigation
as this is a matter of law. However, the following is intended to provide some
guidance on interpretation and to illustrate the types of litigation activities.
6. The conduct of litigation has a statutory definition in Schedule 2 of the Legal Services
Act:
4 (1) The ‘conduct of litigation’ means –
(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such
proceedings (such as entering appearances to actions)
7. The last subheading ‘ancillary functions’ has been defined further, in relation to civil
litigation, by Agassi v Robinson [2005] EWCA Civ 1507. The definition of ancillary
functions is construed narrowly and is limited to the formal steps required in the
conduct of litigation.
8. The remaining restrictions on activities associated with the conduct of litigation for
barristers who are not authorised to conduct litigation include:
•
•
•
•
•
Issuing any claim or process or application notice;
Signing off on a list of disclosure;
Instructing expert witnesses on behalf of a lay client;
Accepting liability for the payment of expert witnesses; and
Any other ‘formal steps’ in the litigation of a sort that are currently required to
be taken either by the client personally or by the solicitor on the record
If you want to be able to carry out any of these activities for your clients, then you
need to seek a litigation extension to your practising certificate.
Amended 21 January 2014
1
9. O'Connor v Bar Standards Board [2012] All ER (D) 108 (Aug) (which addressed the
scope of the meaning of the conduct of litigation, citing Agassi) established that
signing a declaration of truth did not amount to conducting litigation, and has further
underlined that litigation is narrowly defined.
Criminal litigation
10. If you are authorised to conduct litigation, this authorisation extends to both civil and
criminal litigation. You will, however, need to ensure that you meet the Core Duty to
act within your competence in undertaking any litigation activity (see below).
11. The conduct of criminal litigation is more limited in scope than the conduct of civil
litigation because of the role of the prosecuting authorities. For example, prosecution
disclosure is undertaken by the police and is overseen by the CPS (who are already
authorised to conduct litigation by virtue of provisions in the Prosecution of Offences
Act 1985) and there are limited duties to disclose for the defence beyond drafting
defence statements (a task which is already undertaken by barristers).
12. Other formal steps involved in criminal litigation may also be more limited because
the prosecution process is shorter than the equivalent civil procedure and is largely
the responsibility of the prosecution. Nevertheless there may be some processes for
which you would need authorisation.
13. Barristers may already undertake many of the drafting tasks, such as completing
Criminal Procedure Rules forms (for example the Plea and Case Management Form
at the Crown Court, notices and grounds of appeal to the appellate courts). Such
drafting does not constitute the conduct of litigation.
Am I eligible to obtain authorisation to conduct litigation?
14. In order to be eligible to apply for authorisation to conduct litigation, you will need to
hold a current practising certificate. This can be a self-employed, employed or dual
capacity practising certificate.
15. There is an additional requirement which applies if you are a less experienced
barrister. If you are:



a self-employed barrister under 3 years’ standing; or
an employed barrister under 3 years’ standing who supplies legal services to
the public via an authorised body; or
an employed barrister under 1 year’s standing who supplies legal services
only to your employer;
you will need to confirm that you have a ‘qualified person’ in your place of practice,
who is readily available to provide guidance to you when conducting litigation.
16. A qualified person who can supervise you in the conduct of litigation is:

an individual who has been entitled to practise and has practised as a
barrister (other than as a pupil who has not completed pupillage in
accordance with the Bar Training Regulations), or as a person authorised by
another approved regulator (such as a solicitor) (which need not have been as
a person authorised by the same approved regulator);
o for at least six years in the previous eight years;
Amended 21 January 2014
2
o
o
o
o
for the previous two years has made such practice his main
occupation;
is entitled to conduct litigation before every court in relation to all
proceedings;
is not acting as a qualified person in relation to more than two other
people;
and has not been designated by the BSB as unsuitable to be a
qualified person.
17. Alternatively, if you are barrister exercising a right to conduct litigation in a Member
State other than the United Kingdom pursuant to the Establishment Directive or in
Scotland or Northern Ireland pursuant to the European Communities (Lawyer’s
Practice) Regulations 2000, a qualified person has been designated by the BSB as
having qualifications and experience in that state or country which are equivalent to
the qualifications and experience (see Rule rS22.3 for further details).
18. You must ensure you have appropriate insurance in place (see below).
How do I apply?
19. In order to apply for an extension to your practising certificate authorising you to
conduct litigation, you will need to complete an application form. The form consists of
a self-assessment questionnaire, which you should download from the following link:
https://www.barristerconnect.org.uk/login/
20. You will also need to pay the application fee, covering the administrative costs of the
application to the BSB.
21. The information you provide in the form will be assessed by authorisation staff at the
BSB, who will also have access to further records about you and your practice. In
reviewing your application, authorisation staff will assess whether you meet the
criteria for authorisation.
22. The authorisation criteria are:



That you have appropriate systems in your place of practice to enable you to
conduct litigation (Rule S47.3)
That you have the requisite skills and knowledge of litigation procedure to
enable you to provide a competent service to clients (Rule S47.4)
That you have adequate insurance (Rule C76)
23. In order to satisfy itself that you meet these mandatory criteria, the BSB will need to
consider a number of factors. These include:



The training in and experience of litigation you have previously undertaken
The policies and procedures that you have in your place of practice
Insurance
Knowledge and training in litigation
24. It is your responsibility to ensure that you have the appropriate level of knowledge
and training in litigation. You should demonstrate on your application form that you
have such knowledge and that it is up-to-date. If you intend only to provide either civil
Amended 21 January 2014
3
or criminal litigation, you need to supply evidence only in relation to the relevant kind
of litigation.
25. The outcome we wish to achieve is that:
Barristers authorised to do litigation have adequate knowledge of civil and/or
criminal litigation procedures to enable them to conduct litigation competently.
You can demonstrate that you are in a position to meet this outcome by confirming or
providing relevant information about the following. For your knowledge to be
adequate, it must be up-to-date. When any relevant training was undertaken some
time ago, you will need to show how you meet the requirement for your knowledge to
be up-to-date. This might be through more recent raining or practical experience.
Completion of the BPTC or equivalent
26. You should confirm whether you completed the BPTC or an equivalent qualification
within the last three years. The BPTC includes component modules on civil and
criminal litigation procedure which we ordinarily judge to be sufficient training, in
conjunction with pupillage, in knowledge of litigation procedure.
Additional training
27. Where you completed the BPTC or equivalent qualification over three years ago, it is
important to demonstrate that you have taken any necessary further training to
ensure that your knowledge is up-to-date.
28. You should provide details of any additional training in litigation that you have
completed within the last three years.
29. We would ordinarily expect you to have undertaken the public access training course,
or to have renewed your public access training. Further details are available on the
public access section of the BSB website.
30. The BSB does not accredit litigation courses and it is up to you to demonstrate that
the training you have undertaken is appropriate.
31. There are courses on litigation available from postgraduate law colleges and
universities, such as City University, the University of Law (College of Law) and
Kaplan Law School. We may publish further information about these in the litigation
section of the BSB website otherwise you should contact training providers directly
for further details.
32. You should also detail here whether you have undertaken any other form of relevant
learning within the last three years and provide an explanation of any activities you
might have undertaken. For example, this might include additional CPD, self-directed
learning, or other relevant work experience.
Prior experience of litigation
33. You should provide details of any prior experience of litigation.
Prior experience of conducting litigation
Amended 21 January 2014
4
34. If you have previously been authorised to conduct litigation, and have conducted
litigation within the last three years, by virtue of authorisation by another approved
regulator, for example as a practising solicitor, or by virtue of a statutory right to do
so, you should set out the details of this. You should include the dates and time
period of your authorisation and confirmation that your practice has included litigation
within the last three years.
Other experience of litigation
35. You may have other prior experience of litigation, through your involvement in
preparing cases for courts or tribunals or helping to manage trials, even if you have
not previously conducted litigation. For example, you may have provided advice on
aspects of litigation procedure, such as providing advice on the use of evidence or
instructing expert witnesses. You may also have undertaken the drafting of
documents concerned with litigation, such as particulars of claim, or provided advice
on the drafting of such documents.
36. You should describe your prior experience of litigation in this context. It is your
responsibility to assess whether this experience has provided you with sufficient
knowledge and skills to enable you to conduct litigation. Some of the areas of
litigation procedure which you may wish to consider include:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
Pre-action
Issue and acknowledgement of proceedings
Statements of case
Interim remedies
Judgment without trial
Track allocation and case management
Disclosure
Part 36 offers to settle
Preparations for trial and evidence
Costs
Enforcement of judgments
37. We do not expect you to list all aspects of litigation procedure where you have
experience, but you should provide an overview of the sort of work you have
undertaken and should be able to clearly demonstrate how this experience is
relevant to the litigation work you expect to take on once you are authorised.
Ordinarily, we would expect this to have been a significant component of your
practice. You should detail the number of years of practice in which you gained this
experience.
38. You should be prepared to provide specific examples if asked to do so.
Administration and management of litigation
39. You must ensure that there are appropriate administrative and management
procedures in your place of practice and all persons involved in the conduct of
litigation are familiar with them.
40. If your place of practice already has an individual barrister who is authorised to
conduct litigation and you will be adopting the same procedures, you should state
this clearly and you do not need to complete this section of the application. You
should, however, confirm that you are familiar with the relevant procedures.
Amended 21 January 2014
5
41. You are expected to take responsibility for ensuring that appropriate procedures are
in place in your practice. It is important that you can satisfy yourself that you are
personally familiar with these procedures and know how they operate. You should
also ensure that anyone else who has a role in the litigation for which you are
responsible has been trained in such procedures.
42. A series of outcomes relating to administration and management of your practice are
listed in the checklist section of the questionnaire. Under each outcome there is a list
of procedures and policies which we believe should normally form the minimum
arrangements your practice should have in place.
43. You should tick off each item, confirming that your practice has relevant policies and
procedures in place. Alternatively, you should add an explanation of how you believe
each issue is otherwise addressed.
44. Where possible, you should add a document reference, which could be the name or
number of the policy or procedure. We may ask you to provide further evidence, such
as a copy of a policy and this will assist that process.
45. The outcomes we expect you to achieve are:
a.
b.
c.
d.
e.
f.
Clients understand the service they will receive and how fees will be charged
Clients receive a timely and consistent service
Clients receive a service when they need it
All litigation cases are managed effectively
All matters relating to litigation cases are recorded fully and accurately
Support staff are adequately trained and supervised
The Core Duties
All the Core Duties and relevant conduct rules will apply to the conduct of litigation as
to the conduct of the rest of your practice. Core duties which are particularly relevant
are:
You must provide a competent standard of work and service to each client [CD7]:
46. Once you become authorised to conduct litigation, you will remain subject to Core
Duty 7 in the Code of Conduct to provide a competent standard of work and service
to each client. This obligation applies to conducting litigation as it does to any other
type of legal service you provide. You must ensure that you do not take on
instructions, or seek to undertake tasks, if you are not competent to do so.
47. As with all public access work, you must also consider whether it would be in the
client’s interests to instruct a solicitor or other authorised person, for example
because the litigation in question would benefit from more experience or resources
than you have.
You must take reasonable steps to manage your practice, or carry out your role within your
practice, competently and in such a way as to achieve compliance with your legal and
regulatory obligations [CD10]:
48. You must also comply with Core Duty 10 and take reasonable steps to manage any
aspects of your practice concerned with the conduct of litigation. You must also carry
out your role as an individual who is authorised to conduct litigation within your
Amended 21 January 2014
6
practice competently and in such a way as to achieve compliance with any relevant
legal and regulatory objectives.
49. For the purposes of this application, you will need to satisfy the BSB that you have
made a thorough assessment of your skills and competencies relating to your ability
to conduct litigation on behalf of each client, and to do so to a competent standard.
Intended areas of practice
50. If you are granted a litigation extension to your practising certificate you will be
authorised to conduct litigation in all areas of practice. For the purposes of future
supervision and monitoring by the BSB, you should indicate on your application form
the areas of practice in which you intend to conduct litigation. This will help allow us
to assess the risks of barristers conducting litigation across different practice areas.
Review of applications and sampling
51. The BSB will review all applications and may seek further information or ask to talk to
you on the phone in order to discuss any aspects of your application, for example the
nature of your prior experience of litigation. The BSB will also undertake random
sampling of a proportion of applications for more in-depth investigation. If selected for
this sample, this is likely to mean that BSB authorisation staff will contact you for
further information relating to your application, such as documentary evidence of any
courses you have stated that you have undertaken, or copies of policies and
procedures in your place of practice. This will allow us to evaluate your application
more fully.
Supervision
52. The BSB’s Supervision strategy includes a focus on the conduct of litigation, because
this is a new area of practice for many barristers and we wish to ensure that we
identify and mitigate any risks appropriately.
53. Once you are authorised to conduct litigation, you may be subject to further
supervision and the information you provide at authorisation stage may be reviewed.
Further details of the BSB’s supervision arrangements are available on our website.
Amended 21 January 2014
7