You need express written client consent to instruct a barrister. You should involve the client in the choice of barrister to the extent appropriate bearing in mind the client's experience. You should record in writing your reasons for picking the selected counsel. You should discuss fees and expressly agree them in writing in advance with the clerk and the client. The client can complain to us about counsel's fees and the choice of counsel, but by following these rules and keeping good notes, you will be well protected.
Our normal rules as to disbursements apply. Which means that the firm will accept liability up to £500, but not over that sum. You therefore are personally liable for all exposure over £500, if the client does not pay. However, by following these rules you can ensure that no personal liability will be created.
The terms on which you instruct a barrister are important. Most barristers will proffer their standard terms. You should reject them expressly. Instead you have a choice of offering our standard terms (explained below), one of several variations of standard terms (known as ComBar, short for Commercial Bar') or you can negotiate bespoke terms, subject always to these rules. Our preference is that you instruct barristers on our amended version of ComBar B terms or the standard version of ComBar C, both are explained in the paragraphs that follow. If neither you nor counsel discuss terms at all, then you must note that this will mean ComBar C will apply and that creates a contract between the client and counsel, again, more detail on that appears below.
ComBar C is relatively unusual in City firm instructions and can be frowned on by barristers as it cuts us out of the contractual nexus. You should use this where appropriate and where not appropriate (because counsel won't accept ComBar C, because you don't like the optics of ComBar C or because you want control of the instruction with counsel rather than having the client contract directly), then you should use our amended version of ComBar B.
You should familiarise yourself with the differences, and an explanation appears later in this section. In short, basis B is a best endeavours obligation to collect and we recommend full costs on account be taken before incurring a liability. Basis C means the Client must pay counsel directly and the barrister will send their fee note directly to the Client, with a copy to you. Any payments through the firm are client account payments and not office account payments.
Whichever you choose, should be expressly made subject to the amendments made by our Additional Terms. These terms appear on our website with a link to that page in every email we send. To use these terms you should explicitly say when instructing counsel, that you are contracting on our standard terms and set out whether it is basis C or B. Counsel will probably still send their terms or refer to them at some later point. So be sure to win the "battle of the forms" by reminding counsel's clerk each time they suggest it, that it is our terms and not theirs which form the basis of your instruction.
Every year, we send an email reminder to the chambers we work with, telling them that all terms of instruction have to be in accordance with our Additional Terms. There is just one chambers that will not agree our terms; Fenners Chambers. We ask you either not to use them, or to ask them expressly to overturn their position and to agree to use our terms. We have also agreed different terms with Tanfield Chambers. These terms can be viewed here.
The current version of the ComBar terms is version 4.0. These terms have been agreed by a working party of barristers and solicitors and approved by all insurers, most big firms and most chambers. It is rare to find a barrister who will not contract on these terms. ComBar terms are standard save for clause 9, that addresses payment. There are four drafting options in that clause and you must pick one of them. Just saying it's ComBar terms is not enough. You need to specify the basis of payment. There are four different options to choose from:
Basis A is not generally acceptable to Keystone. However, if you have no choice, you can ask the General Counsel to approve this. Our Additional Terms make it clear that only a director of the firm can bind the firm to ComBar A. As the firm is then liable for counsel's fees, you must obtain costs on account from the client to at least cover the budgeted fees plus VAT. However, we recommend you have more than enough costs on account to be safe. These must be in our Client Account before counsel starts work. When the General Counsel approves ComBar A, it will expressly be subject to term 8 of our Additional Terms. This limits our liability to the extent of the costs on account we hold. At the relevant time, the barrister will bill us, and we will bill that as a disbursement to the client. You must forward to disbursements@keystonelaw.co.uk any counsel's fee note not sent to them directly already and bill counsel's fees to the client without delay.
Basis B is the basis most barristers think you mean if you refer generically to ComBar terms. The firm is happy with this, but you should note your obligations to try to collect fees, our internal rule that counsel be paid first before our fees, and that if the client does not pay counsel on account of a counterclaim from the client in respect of any failing by us, then we still have to pay the barrister. You also warrant (in clause 18.1 of the ComBar terms) that the client has an obligation to pay the firm. So, if that is not the case then again, the firm is liable for counsel's fees. You need to get full costs on account even when using ComBar B. In the event fees exceed costs on account, then you must get the client to send a top up. If you don't take reasonable action to procure payment from the client, then the firm will be liable to pay counsel. Again, you must forward to disbursements@keystonelaw.co.uk any counsel's fee note not sent to them directly already and bill counsel's fees to the client without delay.
Basis C is, as mentioned, the basis to which our Additional Terms default, where no other express terms are agreed. Basis C requires the client to sign the terms, and you should send the ComBar agreement to the Client for signature or ask the Clients Team to do so. Under basis C, the barrister bills the Client. So, if you get a bill addressed to Keystone, you will need to return it to counsel's clerk and get them to correct it. They should address it to and send it to the Client, with a copy to us (per ComBar terms, clause 9.14). This is not a disbursement and so should not be sent to our Disbursements Team for logging.
Basis D should not be used because it is designed for the client effectively using counsel as if via direct access and thus cutting you out of the loop. That is dangerous and a breeding ground for claims. Don't work with clients who want to use you as a post box. See the section on Unbundled litigation services for further guidance.
ComBar also means barrister's fees are not deemed. Deeming often occurs through counsel's own terms and means that after an agreed date, counsel can charge the hearing fee even if the hearing does not happen for any reason. ComBar says (see clause 8.3) that the client simply has to pay for the time spent preparing and thus the time allocated for a hearing that does not happen is not chargeable. ComBar does allow for the parties to agree a change to this and many barrister's clerks may make this a condition. It is not wholly unreasonable, so if a clerk does insist on this, you'll need to discuss this with the client and see if the client agrees to pay for hearings that don't take place.
You might want to take a look at the guidance notes on ComBar terms before contracting on them and the Law Society's guidance note on Instructing a barrister' which sets out best practice in this area. You should make sure you are familiar with our rules generally on making referrals.
If you are negotiating bespoke terms, including for example engaging counsel on a CFA, then you are free to do so (see the section above on CFAs, noting that you should involve a costs draftsman to advise the Firm on the terms of counsel's CFA), subject to ensuring the firm is not liable in the event of a client default. Bespoke terms are rare. If you are contemplating bespoke terms, you should contact the General Counsel.
Where a barrister is part of the direct access scheme and where you have some involvement in advising the client on the matter, but the client instructs the barrister directly, then you should be very clear that the firm is not contracting with the barrister at all, only the client is. You should also limit the scope of our retainer to set out exactly what you are doing, for example, to draft a single witness statement. When clients want to use counsel via direct access the same issues apply per ComBar D, above. Avoid clients who instruct counsel on a direct access basis. If you are minded to act, please first consider the guidance on Unbundled litigation services and then call the General Counsel to talk through the risks.
A foot note on the meaning of the word instruct': 'instruct' can be used confusingly in two different contexts. First, it can be used to denote a contract of instruction of a barrister. Second, it can be used to denote the giving of direction as to what the barrister is to do. When acting normally, the distinction does not matter, you will be doing both, although assuming ComBar C, of course, the client will be receiving counsel's bill. But when a direct access barrister is involved (which we don't recommend, see above) you will need to be clear who is responsible for directing the barrister as to what must be done and who is contracting with the barrister; it could be us or it could be the client.
CFAs
If you retain counsel on a CFA, then you must enter into a written agreement with counsel to that effect and be mindful as to Keystone's liability to pay counsel's fees as mentioned above. According to the Bar Council's standard CFA, instructing solicitors are liable for counsel's fees whether a case is successful or not. You must reject this or require Costs on Account to cover all counsel's fees (including the success element). This is seldom feasible, so alternatives include adding wording similar to clause 9 basis B, C or D of the ComBar Terms or written confirmation that counsel will not look to Keystone to make up a shortfall of fees under any circumstances.
Litigation funding
Often funders will require their choice of counsel to be retained which will reduce the client's autonomy. The funder may even instruct counsel on behalf of the firm or the client. Further, a funder may agree solicitor liability and explain it away because they have agreed to fund it. Do not be fooled by this. This is no solution. Either you need Costs on Account, which can be from the funder, or you need to ensure the firm is not liable for fees. Bear in mind that usually the funding agreement will not give Keystone a right to compel a funder to fund as anticipated.
Limitation of liability
ComBar terms also provide for an agreed limitation of liability. This will also need to be set. See the section on Referrals. However, please note that all barristers carry at least £500,000 of PII cover and their chambers typically provides top up cover. In the event that you are struggling to agree a suitable liability cap you would do well to ask what insurance the barrister carries and fix the cap at that level. You will need a lot of persuading to accept a cap that is lower than the level of PII the barrister has, and which is also under our own cap of £5 million. With a big case you should think twice before instructing a barrister with only £500,000 of insurance. KCs carry much more than this.
Please note the optional limitation in clause 21.3 of the ComBar terms which caps the barrister's overall liability including any liability under clause 12.4. Clause 12.4 of the standard ComBar terms limits a barrister's liability to the lay client or the solicitor which is exclusively contractual to £100,000. Nothing in the terms is intended to affect the barrister's liability to the lay client or to the solicitor as a matter of general law.
Complaints
The standard ComBar terms mention the provision of a barrister's complaints policy. Bar Council rules require all counsel to provide clients with a copy of the complaints policy of their chambers. Some chambers will ask to send the policy directly to the client, while others will expect us to forward it on; typically, this will be in the form of counsel's Engagement Letter. Best practice is to send on counsel's Engagement Letter to our client with a covering note, save where we know counsel has already sent this directly to the client.
Know-how
If you think you may wish to use a barrister's work product in our knowledge management system (or for your own know-how purposes for future use), you should include optional clause 7(e) - clause 21.5 of the general ComBar terms.
Please also see the Law Society's note on the Use of Counsel's Opinions
Cyber Security
In acting for our client you will send counsel confidential information. Counsel will then become responsible for that information. We owe our clients a duty of care only to send counsel client data when doing so is both necessary and appropriate. We expect all chambers to meet our cyber security adequacy standards, including having the Cyber Essential Plus certification. We carry out an annual audit of the chambers we work with and state in the Approved Suppliers section on Keyed-In whether we consider their cyber security measures are adequate. You should check our register of chambers before instructing counsel.
If the chambers you seek to use is not an Approved Supplier in Keyed-In, you should notify the Director of Operations and Compliance who will carry out an expedited audit and remind them of our terms of instruction (see above). If the chambers is listed, then click on that chambers' entry and scroll down to the comments box. There it will advise you that the chambers is compliant, or display the following warning:
"This chambers does NOT meet our minimum cyber security requirements. You should either choose another chambers that does meet those requirements or explain to the client that their data may be at risk of unauthorised access if this chambers is used because this chambers has weaker than normal cyber protection. You can only use this chambers if the client gives informed written consent to this slightly greater data risk. Save that email to your file on NetDocs."
You can still use a chambers which fails our cybersecurity adequacy audit, but you have to let the client know about the slight risk to their data and get their express consent before using that chambers. You may wish to use the following template for seeking such consent:
"You have instructed me to retain [name of counsel] of [name of chambers] for you. My firm undertakes an annual cybersecurity adequacy audit of all the chambers which we use. This chambers has not met our cyber security adequacy requirements and as such, there is an elevated risk that a third party may compromise that chambers' systems and gain access to your data. If you prefer that I instruct an alternative chambers, then please let me know. If you are happy for me to send this chambers your confidential information, then I need your express instruction in this respect."