21 August 2017

Annexe F1 - Licensed Access and Recognition

The Licensed Access Rules

From 6 January 2014 the Bar should refer to a  new Handbook for rules and guidance on their conduct as barristers. 

1. Subject to these rules and to compliance with the Code of Conduct (and in particular to paragraphs 401 and 403) a barrister in self-employed practice may accept instructions from a licensed access client in circumstances authorised in relation to that client by the Licensed Access Recognition Regulations (reproduced in this Annexe) whether that client is acting for himself or another.

2. These rules apply to every matter in which a barrister in self-employed practice is instructed by a licensed access client save that paragraphs 4(b) 6 7 and 9 of these rules do not apply to any matter in which a licensed access client is deemed to be a licensed access client by reason only of paragraph 7 or paragraph 8 of the Licensed Access Recognition Regulations.

3. Not used.

4. A barrister is only entitled to accept instructions from a licensed access client if at the time of giving instructions the licensed access client

(a) is identified; and

(b) sends the barrister a copy of the Licence issued by the Bar Standards Board.

5. A barrister must not accept any instructions from a licensed access client

(a) unless the barrister and his Chambers are able to provide the services required of them by that licensed access client;

(b) if the barrister considers it in the interests of the lay client or the interests of justice that a solicitor or other authorised litigator or some other appropriate intermediary (as the case may be) be instructed either together with or in place of the barrister.

6. A barrister who accepts instructions from a licensed access client otherwise than on the terms of the Licensed Access Terms of Work as approved from time to time by the Bar Standards Board 
(a) must first agree in writing the terms upon which he has agreed to do the work and the basis upon which he is to be paid;

(b) must keep a copy of the agreement in writing with the licensed access client setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid.

7. A barrister who accepts instructions from a licensed access client

(a) must promptly send the licensed access client

(i) a statement in writing that the instructions have been accepted (as the case may be) (1) on the standard terms previously agreed in writing with that licensed access client or (2) on the terms of the Licensed Access Terms of Work (and thereafter if requested a copy of the Licensed Access Terms of Work); or

(ii) if he has accepted instructions otherwise than on such standard terms or on the terms of the Licensed Access Terms of Work, a copy of the agreement in writing with the licensed access client setting out the terms upon which he has agreed to do the work and the basis upon which he is to be paid;

(b) unless he has accepted instructions on the terms of the Licensed Access Terms of Work or on terms which incorporate the following particulars must at the same time advise the licensed access client in writing of:

(i) the effect of paragraph 401 of the Code of Conduct as it relevantly applies in the circumstances;

(ii) the fact that the barrister cannot be expected to perform the functions of a solicitor or other authorised litigator and in particular to fulfil limitation obligations disclosure obligations and other obligations arising out of or related to the conduct of litigation; 

(iii) the fact that circumstances may require the client to retain a solicitor or other authorised litigator at short notice and possibly during the case.

8. If at any stage a barrister who is instructed by a licensed access client considers it in the interests of the lay client or the interests of justice that a solicitor or other authorised litigator or some other appropriate intermediary (as the case may be) be instructed either together with or in place of the barrister:

(a) the barrister must forthwith advise the licensed access client in writing to instruct a solicitor or other authorised litigator or other appropriate intermediary (as the case may be) ; and

(b) unless a solicitor or other authorised litigator or other appropriate intermediary (as the case may be) is instructed as soon as reasonably practicable thereafter the barrister must cease to act and must return any instructions.

9. If at any stage a barrister who is instructed by a licensed access client considers that there are substantial grounds for believing that the licensed access client has in some significant respect failed to comply either with the terms of the Licence granted by the Bar Standards Board or (where applicable) with the terms of the Licensed Access Terms of Work the barrister must forthwith report the facts to the Bar Standards Board.

10. A barrister who accepts instructions from a licensed access client must keep a case record (whether on card or computer) which sets out:

(a) the date of receipt of the instructions, the name of the licensed access client, the name of the case, and any requirements of the licensed access client as to time limits;

(b) the date on which the instructions were accepted;

(c) the dates of subsequent instructions, of the despatch of advices and other written work, of conferences and of telephone conversations;

(d) when agreed, the fee.

11. A barrister who accepts instructions from a licensed access client must either himself retain or take reasonable steps to ensure that the licensed access client will retain for six years after the date of the last item of work done:

(a) copies of instructions (including supplemental instructions);

(b) copies of all advices given and documents drafted or approved;

(c) a list of all documents enclosed with any instructions;

(d) notes of all conferences and of all advice given on the telephone.

LICENSED ACCESS

THE LICENSED ACCESS RECOGNITION REGULATIONS

1. Authorised licensed access clients are those persons and organisations and/or their members and/or their or their members' employees (as the case may be) who have from time to time been approved as such by the Bar Standards Board.

2. Any person or organisation wishing to be approved as an authorised licensed access client shall apply in writing to the Bar Standards Board by completing an application form in such form and supplying such other information as the Bar Standards Board may from time to time or in any particular case require.

3. In approving any person or organisation as an authorised licensed access client the Bar Standards Board may grant such approval in each case as the Bar Standards Board may think appropriate:

(a) 
(i) on a provisional basis or
(ii) on a full basis;

(b) 
(i) for a fixed period or
(ii) for a fixed period subject to extension or
(iii) indefinitely;

(c) 
(i) to the person or organisation and/or
(ii) to some or all of the members of the organisation and/or
(iii) to some or all of the employees of the person or organisation or its members;

(d) in relation to matters concerning
(i) the person or organisation and/or its members (as the case may be) and/or
(ii) his or its or its members' employees and/or
(iii) his or its or its members' clients or customers;

(e) subject to such limitations or conditions as the Bar Standards Board may think appropriate relating to

(i) the matters in relation to which the authorised licensed access client may instruct a barrister and/or

(ii) the courts or tribunals before which a barrister so instructed may exercise a right of audience and/or

(iii) such other matters (including the means by which the authorised licensed access client shall instruct a barrister) as seem relevant in the circumstances.

4. The Bar Standards Board shall issue to every person or organisation approved as an authorised licensed access client a Licence in such form as the Bar Standards Board may from time to time or in the particular case think appropriate. Such Licence (which may be a provisional Licence or a full Licence):

(a) shall specify (i) the name of the person or organisation who has been approved  as an authorised licensed access client (ii) the period (if any) for which the Licence has been granted or (as the case may be) that the Licence has been granted indefinitely and (iii) the limitations or conditions (if any) subject to which the Licence has been granted;

(b) may if the Bar Standards Board think appropriate provide that unless otherwise first agreed in writing with an individual barrister or chambers all instructions accepted by any barrister from the authorised licensed access client will be deemed to be given and accepted on the terms of the Licensed Access Terms of Work as approved from time to time by the Bar Standards Board;

(c) may if the Bar Standards Board think appropriate provide that a copy of the Licence shall be sent with every set of instructions to any barrister instructed by the authorised licensed access client;

(d) shall remain at all times the property of the General Council of The Bar to whom (or to whose duly appointed officer) it shall be surrendered on demand.

5. The Bar Standards Board may from time to time:

(a) approve additional persons or organisations as authorised licensed access clients;

(b) withdraw approval (either wholly or in part) from any person or organisation as an authorised  licensed access client;

(c) increase reduce or otherwise alter the period for which a person or organisation is approved as an authorised licensed access client;

(d) alter or revoke the limitations or conditions (if any) attached to any approval of a person or organisation as an authorised licensed access client or impose new or additional limitations or conditions;

(e) cancel and demand the surrender of any Licence issued under paragraph 4 of these regulations. 

6. In exercising their functions under paragraphs 1 2 3 4 and 5 of these regulations the Bar Standards Board shall comply with the statutory objectives referred to in section 17(1) of the Courts and Legal Services Act 1990 and section 1(2) of the Access to Justice Act 1999 may consult with such persons organisations or bodies as they think appropriate and shall to such extent as they may think appropriate in the particular case have regard to the following matters:

(a) the fact that barristers in independent practice operate as a referral profession of specialist consultants;

(b) the extent to which the person or organisation or its members (as the case may be) are likely to have a significant requirement to retain the services of a barrister for their own benefit or for the benefit of their employers employees members clients or customers (as the case may be);

(c) the extent to which whether as a result of professional or other relevant training or by reason of practice and experience the person or organisation or its employees or members (as the case may be) are or may reasonably be expected to be

(i) providers of skilled and specialist services

(ii) competent in some identifiable area of expertise or experience

(iii) familiar with any relevant area of law

(iv) possessed of the necessary skills to obtain and prepare information and to organise papers and information sufficiently to enable the barrister to fulfill his duties in a non-contentious matter to the client and in a contentious matter both to the client and to the court

(v) possessed of the necessary skills to take charge and have the general conduct of the matters in respect of which they wish to retain the services of a barrister;

(d) the extent to which the affairs and conduct of the person or organisation or its members (as the case may be) are subject to some appropriate professional disciplinary regulatory or other organisational rules;

(e) the extent to which the person or organisation or its members (as the case may be)

(i) are insured against claims for negligence in relation to their handling of matters in respect of which they wish to retain the services of a barrister

(ii) have made and continue to comply with satisfactory arrangements for holding in separate accounts and maintaining as trust monies any monies received from third parties
(iii) have made and continue to comply with satisfactory arrangements for ensuring that barristers' fees are promptly paid;

(f) such other facts and matters (if any) as seem to them to be relevant in the circumstances.

7. Notwithstanding paragraphs 2, 3 and 4 of these regulations any member of any of the bodies referred to in the First Schedule to these regulations shall be deemed to be an authorised licensed access client (including in relation to matters concerning that member's clients or customers) but

(a) only in a matter of a kind which falls generally within the professional expertise of the members of the relevant body; and

(b) not for the purpose of briefing counsel to appear in or exercise any right of audience before the Judicial Committee of the House of Lords the Privy Council the Supreme Court the Crown Court a County Court or the Employment Appeals Tribunal.

8. Notwithstanding paragraphs 2, 3 and 4 of these regulations any of the following shall be deemed to be an authorised licensed access client:

(a) an arbitrator (including for these purposes an adjudicator under the Housing Grants Construction and Regeneration Act 1996) but only when instructing counsel for the purpose of advising on any point of law practice or procedure arising in or connected with an arbitration in which he has been or may be appointed;

(b) any person who has been appointed to one of the offices of Ombudsman referred to in the Second Schedule to these regulations but only when instructing counsel for the purpose of advising on any point of law practice or procedure arising in the course of the performance of his duties.

9. Nothing in paragraphs 7 and 8 of these regulations shall prevent

(a) any person to whom paragraph 7 or paragraph 8  applies making an application in accordance with paragraph 2 of these regulations (in which event paragraphs 3 4 5 and 6 of these regulations shall apply to such application and to any Licence issued pursuant to such application);

(b) the Bar Standards Board exercising in relation to any person to whom paragraph 7 or paragraph 8 applies the powers conferred by paragraphs 5(b) 5(c) and 5(d) of these regulations (in which event paragraph 6 of these regulations shall apply).

THE FIRST SCHEDULE

Part I - Accountants and taxation advisers

1. The Association of Authorised Public Accountants
2. Association of Taxation Technicians
3. The Association of Chartered Certified Accountants
4. The Chartered Institute of Management Accountants
5. Institute of Chartered Accountants
6. The Institute of Chartered Accountants in Ireland
7. Institute of Chartered Accountants in Scotland
8. The Chartered Institute of Taxation
9. The Institute of Financial Accountants
10. The Institute of Indirect Taxation

Part II - Insolvency practitioners

1. Insolvency Practitioners Association

Part III - Architects surveyors and town planners

2. The Architects Registration Council of the UK
3. The Architects and Surveyors Institute
4. Association of Consultant Architects
5. The Royal Institute of British Architects
6. The Royal Institution of Chartered Surveyors
7. The Royal Town Planning Institute

Part IV - Engineers

1. The Institution of Chemical Engineers
2. The Institution of Civil Engineering Surveyors
3. The Institution of Civil Engineers
4. The Institution of Engineering and Technology
5. Institution of Mechanical Engineers
6. The Institution of Structural Engineers

Part V - Valuers

1. The Incorporated Society of valuers & Auctioneers

Part VI - Actuaries

2. The Faculty of Actuaries
3. Institute of Actuaries

Part VII - Chartered secretaries and administrators

1. The Institute of Chartered Secretaries and  Administrators

Part VIII - Insurers

2. The Association of Average adjusters
3. The Chartered Institute of Loss Adjusters
4. The Chartered Insurance Institute

THE SECOND SCHEDULE

1. Parliamentary Commissioner for Administration
2. Commissioner for Local Administration (England)
3. Commissioner for Local Administration (Wales)
4. Health Service Commissioner
5. Banking Ombudsman
6. Building Society Ombudsman
7. Insurance Ombudsman Bureau
8. The Personal Investment Authority Ombudsman Bureau Ltd
9. The Legal Services Ombudsman