I’ll start with how not to brief a barrister.
My friend J decided to start a claim against his neighbour. He was a litigant in person – but told me that he had a barrister “on hand” who was guiding him. J told me the barrister represented him at a pre-trial hearing, helped him write some letters to the neighbour he was suing and had a few conferences with him.
J told me he’d already spent thousands on his barrister’s help.
The case was a month away from trial and J rang me in a bit of a panic. Both he and his neighbour let the case drift – and neither was ready for trial. J wondered if it was worth pressing ahead, or if he should drop his claim.
I asked J, “What did your barrister say about your prospects of success and quantum?”
J said he hadn’t asked – and his barrister hadn’t told him.
Rule Number 1 of Litigation Club
Before you sign and file that claim form, find out if your case is worth fighting.
There is little point in asking a barrister or solicitor to appear at court or help you with letters if they haven’t been asked to sit down with those papers you organised in “Show me your papers” and tell you if you’ve got a case worth the time and aggravation of court/tribunal proceedings.
Whenever I’ve sought a barrister’s opinion, I’ve asked for it in writing. I do that because I want a very clear analysis of how the law applies to the facts of my particular case that I can use in helping me decide whether to sue someone – and that I can keep and refer to as my constant guide after I’ve commenced those proceedings.
Asking a barrister for a written opinion of the merits and value of the case can be a one-off transaction. You are not obliged to continuously instruct him/her throughout the life of your case.
Front-loading your case
“Front-loading” a case means being prepared before commencing proceedings. It means getting legal advice about the merits and the monetary value of your claim before launching proceedings.
If I don’t get the law, my prospects of success and value of my claim nailed down before I sue, I leave myself open – not only to losing, but to wasting my time, alienating people and potentially being liable for the other side’s legal costs (as well as my own costs).
Will you be liable for costs if it all goes wrong?
The general rule is the loser pays the winner’s costs: CPR, r 44.3(2)
Even those who withdraw or discontinue their claim before trial may have to pay the other side’s costs to date – and you would need to get specialist legal advice as to whether, on the facts of your case, you would be liable for such costs.
While Small Claims costs are generally limited, if the court decides you’ve behaved unreasonably, it has the discretion to award the other side “further costs”: CPR, r 27.14.(2)(g)
And while the Employment Tribunal is considered a cost-free jurisdiction, an ET can award costs to the other side if it determines, among other things, your claim is “misconceived”: paragraph 40(c) of the Employment Tribunal Regs.
Having said that, I’ve seen Defendants trot out the, “frivolous, vexatious and malicious” mantra to try to scare off a Claimant.
So how do you know whether you’re walking into a minefield or if the other side’s bluffing?
Have I convinced you to get legal advice before turning the nuclear launch key?
Litigation can be high stakes poker – and it makes sense to have someone who’s objective and legally qualified give you their professional opinion on the strengths, weaknesses and value of your case before you press ahead and launch that claim.
What would I do?
Get independent legal advice from a specialist in your particular area of law and know the risks BEFORE filing a claim.