16 October 2018

Part X - Definitions

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

This section contains the definition of terms used in the Code.

1001. In this Code except where otherwise indicated:

"the Act" means the Courts and Legal Services Act 1990 and where the context permits includes any orders or regulations made pursuant to powers conferred thereby;

"the Act of 1985" means the Administration of Justice Act 1985;

"the Act of 2007" means the Legal Services Act 2007;

"Adjudication Panel" means an adjudication panel constituted under the Adjudication and Appeals Rules (reproduced in Annex P);

"advocacy services" means advocacy services as defined in Section 119 of the Act;

"allocation of unassigned work" for the purposes of rule 408.2(e) includes but is not limited to work allocated to:

"Appointments Board" means the Board established by the Bar Council to make appointments to the Bar Standards Board and its regulatory committees;

"Approved Regulator" has the same meaning as in section 20(2) of the Act of 2007; 1

"authorised body" means a body that has been authorised by an approved regulator to practise as a licensed body or recognised body;

"authorised litigator" means an authorised litigator as defined in Section 119 of the Act;

"bankruptcy order" includes a bankruptcy order made pursuant to the Insolvency Act 1986 and any similar order made in any jurisdiction in the world;

"Bar" means the Bar of England and Wales;

"Bar Council" means The General Council of the Bar as constituted from time to time or a Committee thereof;

"barrister" means an individual who has been called to the Bar by one of the Inns of Court and who has not ceased to be a member of the Bar; and in Parts III (other than paragraph 301), VI, VII and VIII of this Code means a practising barrister;

"Bar Standards Board" means the Board established to exercise and oversee the regulatory functions of the Bar Council;

"Bar Training Regulations" means the Consolidated Regulations in respect of anything arising before 1st September 2009 and the Bar Training Regulations in respect of anything arising on or after 1st September 2009;

"BMIF" means Bar Mutual Indemnity Fund Limited;

"brief" means instructions to a barrister to appear as an advocate before a Court;

"Call" means Call to the Bar in accordance with the Bar Training  Regulations;4

"chambers" means a place at or from which one or more self-employed barristers carry on their practices and also refers where the context so requires to all the barristers  (excluding pupils) who for the time being carry on their practices at or from that place;

"client" means lay client or intermediary;

"Company" means a company regulated by an Approved Regulator;

"complaint" means an allegation by any person or by the Bar Standards Board of its own motion of professional misconduct or of inadequate professional service and includes a legal aid complaint;

"Complaints Commissioner" means the person appointed as such  under Regulation 17A of the Bar Council Constitution;

"the Complaints Committee" means the Complaints Committee of the Bar Standards Board or its successor; 5

"conditional fee agreement" means a conditional fee agreement as defined in Section 58 of the Act;

"Consolidated Regulations" means the Consolidated Regulations of the Inns of Court;

"Court" includes any court or tribunal or any other person or body whether sitting in public or in private before whom a barrister appears or may appear as an advocate;

"Director" means a director of a company, and includes the director of an Authorised  Body which is a company, and in relation to a societas Europaea includes:

(a) in a two-tier system, a member of the management organ and a member of the supervisory organ; and

(b)  in a one-tier system, a member of the administrative organ;

"Disciplinary Tribunal" means a disciplinary tribunal constituted under the Disciplinary Tribunals Regulations (reproduced in Annex K);

"diversity data" means information relating to the following characteristics in respect of an individual;

"employed barrister" means a practising barrister who is employed other than by an Authorised Body 6 either under a contract of employment or by virtue of an office under the Crown or in the institutions of the European Communities and who supplies legal services as a barrister in the course of his employment;

"employer" means a person by whom an employed barrister is employed as such and any holding subsidiary or associated company corporate body or firm of that person;

"English law" includes international law and the law of the European Communities;

"Establishment Directive" means Directive 98/5/EC of the European Parliament and of the Council of February 1998 to facilitate practice of the profession of lawyer on a permanent basis in a Member State other than that in which the qualification was obtained;

"European lawyer" means a person who is a national of a Member State and who is authorised in any Member State to pursue professional activities under any of the professional titles appearing in article 2(2) of the European Communities (Lawyer's Practice) Order 1999, but who is not any of the following:

(a)  a solicitor or barrister of England and Wales or Northern  Ireland; or

(b)  a solicitor or advocate under the law of Scotland.

"family responsibilities", for the purposes of rule 408(2)(i) includes caring responsibiltiies for older, young, or disabled dependants or relatives.

"foreign lawyer" means a person (other than a registered European lawyer or a practising barrister of the bar of England and Wales) who is authorised by a competent professional body to practise in a system of law other than English law;

"harassment"means any form of unwanted conduct in relation to a relevant protected characteristic which has the effect or purpose of violating a person's dignity or creating an intimidating, hostile, degrading humiliating or offensive environment. A single incident may constitute harassment if it is sufficiently serious. The motive or intention of the perpetrator may be (but is not invariably)  relevant.

"Hearings before the Visitors" means an appeal hearing constituted under the Hearings before the Visitors Rules 2005 (reproduced in Annex M);

"home professional body" means the body in a Member State which authorises a European lawyer to pursue professional activities under any of the professional titles appearing in article 2(2) of the European Communities (Lawyer's Practice) Order 1999 and, if he is authorised in more than one Member States, it shall mean any such body;

"home professional title" means, in relation to a European lawyer, the professional title or any of the professional titles specified in relation to his home State in article 2(2) of the European Communities (Lawyer's Practice) Order 1999 under which he is authorised in his home State to pursue professional activities;

"home State" means the Member State in which a European lawyer acquired the authorisation to pursue professional activities under his home professional title and, if he is authorised in more than one Member State, it shall mean any such Member State;

"inadequate professional service" means such conduct towards a lay client or performance of professional services for that client which falls significantly short of that which is to be reasonably expected of a barrister in all the circumstances;

"incorporated solicitors' practice" means a body recognised under section 9 of the Act of 1985;

"indictable offence" carries the definition set out in the Serious Organised Crime and Police Act 2005 as defined in Schedule 1 of the Interpretation Act 1978 as "an offence which, if committed by an adult is triable on indictment whether it is exclusively so triable or triable either way";

"Informal Hearing Panel" means an informal hearing panel constituted under paragraph 43 of the Complaints Rules (reproduced in Annex J);

"instructions" means instructions or directions in whatever form (including a brief) given to a practising barrister to supply legal services whether in a contentious or in a non-contentious matter and "instructed" shall have a corresponding meaning;

"Interim Suspension Panel" means a panel constituted under the Interim Suspension Rules (reproduced in Annex N);

"intermediary" means any person by whom a self-employed barrister is instructed on behalf of a lay client and includes a professional client who is not also the lay client;

"International work" shall have the meaning set out in the International Practice Rules (reproduced in Annex A);

"investigating" for the purpose of rule 408(2)(e) means considering the reasons for disparities in data such as:

"JRC" means the Joint Regulations Committee of the Bar Council or any successor body exercising the same responsibilities by whatever name called;

"lay client" means the person on whose behalf a practising barrister (or where appropriate in the case of an employed barrister his employer) is instructed;

"lay member" means a lay person appointed by the Appointments Board to be a member of the Bar Standards Board or one of its regulatory committees;8

"lay representative" means either

(a) a lay person appointed by the President of the Council of the Inns of Court to serve on Disciplinary Tribunals, Summary Procedure Panels, Informal Hearings Panels,  Interim Suspension Panels and Appeal Panels therefrom, Adjudication Panels, Adjudication Appeal Panels and Medical Panels and Review Panels therefrom; or

(b) a lay person appointed by the Lord Chief Justice to serve on Hearings before the Visitors

save that no person may be appointed as a lay representative:

(i) if they are a member of the Complaints Committee  or of the Bar Standards Board or any of its other Committees; or

(ii) if they were a member of the Complaints Committee at any time when the matter which the Tribunal or panel is dealing with was considered  by the Complaints Committee.9

"legal aid complaint" shall mean a complaint so described in section 40 of the Act of 1985 as amended by the Access to Justice Act 1999;

"Legal Advice Centre" means a centre operated by a charitable or similar non-commercial organisation at which legal services are habitually provided to members of the public without charge (or for a nominal charge) to the client and:

(a) which employs or has the services of one or more solicitors pursuant to rules 13.04 and 13.09 of the Solicitors Code of Conduct 2007 or for whom the Solicitors Regulation Authority has granted a waiver, or

(b) which has been and remains designated by the Bar Standards Board as suitable for the employment or attendance of barristers subject to such conditions as may be imposed by the Bar Council or Bar Standards Board in relation to insurance or any other matter whatsoever;

"legal services" includes legal advice representation and drafting or settling any statement of case witness statement affidavit or other legal document but does not include:

(a) sitting as a judge or arbitrator or acting as a mediator;

(b) lecturing in or teaching law or writing or editing law books articles or reports;

(c) examining newspapers, periodicals, books, scripts and other publications for libel, breach of copyright, contempt of court and the like;

(d) communicating to or in the press or other media;

(e) exercising the powers of a commissioner for oaths;

(f) giving advice on legal matters free to a friend or relative or acting as unpaid or honorary legal adviser to any charitable benevolent or philanthropic institution;

(g) in relation to a barrister who is a non-executive director of a company or a trustee or governor of a charitable benevolent or philanthropic institution or a trustee of any private trust, giving to the other directors trustees or governors the benefit of his learning and experience on matters of general legal principle applicable to the affairs of the company institution or trust;

"Legal Services Commission" means a body established by or under Section 1 or Section 2 of the Access to Justice Act 1999 and includes any body established and maintained by such a body;

"Licensed Access client" means a person or organisation approved as such by the Bar Standards Board in accordance with the Licensed Access Recognition Regulations (reproduced in Annex F);

'licensed body' means a body licensed by a licensing authority, other than the Bar Standards Board, under Part 5 of the LSA;

'List of Defaulting Solicitors' means the list of firms and persons referred to in the Bar Council's Rules relating to the List of Defaulting Solicitors as amended from time to time

"litigation services" means litigation services as defined in Section 119 of the Act;

 "LLP" means a limited liability partnership formed by being incorporated under the Limited Liability Partnerships Act 2000; 

"Manager" means a barrister who is: 10

(a) a partner in a partnership;

(b) a member of an LLP; or

(c) a director of a company

which is an Authorised  Body;

"Mediation"  mediation is a process whereby the parties to a dispute appoint a neutral person (mediator) to assist them in the resolution of their dispute;

"Medical Panel" means a panel constituted under the Fitness to Practise Rules (reproduced in Annex O);

"Member State" means a state which is a member of the European Communities;

"members of the workforce" in respect of a chambers will include barristers, pupils, clerks and staff;

"non-practising barrister" means a barrister who is not a practising barrister;

"the Professional Conduct and Complaints Committee" or "PCC" means the Professional Conduct and Complaints Committee of the Bar Council or any successor body exercising the same responsibilities by whatever name called;

"owner" in relation to a body means a person with any ownership interest in that body;

"partner" means a person who is or is held out as a partner in an unincorporated firm;13

"parental leave' means leave taken by the main carer of a child preceding or folowing birth or adoption. This could be the mother, father or adoptive parent of either sex; 

"partnership" means an unincorporated partnership, and includes any unincorporated firm in which persons are or are held out as partners, but does not include an LLP;13

"practising barrister" means a barrister who is practising as such within the meaning of paragraph 201;

"the President" means the President of the Council of the Inns of Court;

"professional client" means a solicitor with a current practising certificate or other professional person by whom a self-employed barrister is instructed that is to say:

(a) solicitors' firm, LLP or company, Authorised  Body regulated by the Solicitors Regulation Authority13 or othr approved regulator,  authorised litigator, Parliamentary agent, patent agent, European Patent Attorney, trade mark attorney, Notary or a European lawyer registered with the Law Society of England and Wales;

(b) a licensed conveyancer in a matter in which the licensed conveyancer is providing conveyancing services;

(c) an employed barrister or registered European lawyer;

(d) any practising barrister or registered European lawyer acting on his own behalf;

(e) a foreign lawyer in a matter which does not involve the barrister supplying advocacy services;

(f) a Scottish or Northern Irish Solicitor

(g) the representative of any body (such as a Legal Advice Centre or Pro Bono or Free Representation Unit) which arranges for the supply of legal services to the public without a fee, and which has been and remains designated by the Bar Standards Board (subject to such conditions as may be imposed by the Bar Council or Bar Standards Board in relation to insurance or any other matter whatsoever) as suitable for the instruction of barristers, and which instructs a barrister to supply legal services without a fee;

"professional misconduct" shall bear the meaning given in paragraphs 901 and 902;

"the public" includes any lay client of a practising barrister (or in the case of an employed barrister of the barrister's employer) other than any of the persons referred to in Paragraph 501;

"public access instructions" means instructions given to a barrister by or on behalf of a lay client pursuant to paragraph 401(a)(iii);

"the Qualifications Committee" means the Qualifications Committee of the Bar Standards Board or its successor;

"the Quality Assurance Committee" means the Quality Assurance Committee of the Bar Standards Board or its successor;

"Recognised Body" means a partnership, LLP, company or sole principal authorised to provide reserved legal services by an Approved Regulator other than the Bar Standards Board other  than a licensable body as defined in s.72 of the Act of 2007 but does not include a body which is deemed to be authorised by reason of s.18(3) of the Act of 2007;

"registered European lawyer" means a European lawyer registered as such by the Bar Council and by an Inn in accordance with Annexe B;

"regular review" for the purposes of rule 408(2)(e) means as often as is necessary in order to ensure effective monitoring and review takes place. In respect of data on pupils it is likely to be considered reasonable that "regularly" should mean annually. In respect of tenants, due to the static nature of the numbers, it is likely to be considered reasonable that "regularly" should mean every three years;

"relevant criminal offence" means any criminal offence committed in any part of the world except:

(a) an offence committed in the United Kingdom which is a fixed penalty offence for the purposes of the Road Traffic Offenders Act 1988 or any statutory modification or replacement thereof for the time being in force;

(b) an offence committed in the United Kingdom or abroad which is dealt with by a procedure substantially similar to that applicable to such a fixed penalty offence; and

(c) an offence whose main ingredient is the unlawful parking of a motor vehicle;

"remedial action" for the purposes of rule 408(2)(e) means any action aimed at removing or reducing the disadvantage experienced by particular groups;

"right of audience" means a right of audience as defined in Section 119 of the Act;

"right to conduct litigation" means a right to conduct litigation as defined in Section 119 of the Act;

"selection panel" for the purposes of rule 408(2)(b) and (c) means any panel formally tasked with the final decision on recruitment or selection of pupils, clerks, mini-pupils or tenants;

"self-employed barrister" means a practising barrister other than :-

(a)  a barrister who is a manager or employee of a  Authorised  Body; and

(b)  an employed barrister acting in the course of his  employment;

 "solicitor" means a solicitor of the Supreme Court of England and Wales;

"the Standards Committee" means the Standards Committee of the Bar Standards Board or its successor;  8

"Summary Procedure Panel" means a panel constituted under the Summary Procedure Rules (reproduced in Annex L);

"trade association" means a body of persons (whether incorporated or not) which is formed for the purpose of furthering the trade interests of its members or of persons represented by its members, and does not include any association formed primarily for the purpose of securing legal assistance for its members;  

"training for the purposes of rule 408(2)(b) and (c) means any course of study covering all the following areas:

Training may be undertaken in any of the following ways: 

Any reference to the masculine shall be deemed to include the feminine and any reference to the singular shall include the plural.