{"id":6318,"date":"2019-01-26T07:44:52","date_gmt":"2019-01-26T07:44:52","guid":{"rendered":"http:\/\/legalblog.ie\/barristers-ii\/"},"modified":"2023-04-10T13:50:28","modified_gmt":"2023-04-10T13:50:28","slug":"barristers-ii","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/barristers-ii\/","title":{"rendered":"Duties &#038; Role"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/barristers-ii\/#Liability_for_Negligence\" title=\"Liability for Negligence\">Liability for Negligence<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/barristers-ii\/#Role_I\" title=\"Role I\">Role I<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/barristers-ii\/#Role_II\" title=\"Role II\">Role II<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/barristers-ii\/#Duties_to_the_Court\" title=\"Duties to the Court\">Duties to the Court<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/barristers-ii\/#CPD\" title=\"CPD\">CPD<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Liability_for_Negligence\"><\/span>Liability for Negligence<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>For over 200 years, it was accepted that advocates, including in particular barristers, were immune from suit in respect of the conduct and management of cases in court. This is extended to pre-trial work which was intimately connected with the conduct of the case in court, that it can fairly be said to be a preliminary decision affecting the way in which the case is to be conducted when it is heard.<\/p>\n<p>The justifications for the immunity were based on public policy.\u00a0 The decision of a court should not be collaterally impugned.\u00a0 The general immunity and privilege of things done or said in court should not be undermined.\u00a0 An advocate owes a duty to the court as well as his client, and it was argued that imposition of liability for negligence might inhibit performing fearlessly and independently in court.<\/p>\n<p>The House of Lords determined in 2001 that public policy considerations were no longer sufficiently persuasive and in principle, \u00a0advocates could be liable for negligence in the same way as another profession. The majority of the House of Lords were of the view that there was adequate protection available in elsewhere. Attempts to re-litigate matters which were already decided in court, would constitute an abuse of process of the court.<\/p>\n<p>The immunity from suit afforded to statements in the course of legal proceedings took the matter no further. As it was aimed at ensuring candour in court, it was irrelevant to the question of liability for error or misjudgement.\u00a0 There was existing jurisdiction to make wasted costs orders against advocates, where they\u00a0fail to serve the court, as well as their client.\u00a0 It was also perceived that the continuation of the immunity might fall foul of the right of access to courts, afforded by the European Convention on Human Rights.<\/p>\n<p>Any action may be struck out if it is a collateral challenge to the decision of a court.\u00a0 The courts may strike out claims on this public policy ground, so as to prevent re-litigation of an issue. The principle applies where the claimant had a reasonable opportunity to present his case, and not to cases where negligence is such as to deprive the claimant of a chance of successful appeal or the service of a suitable expert to support his claim.<\/p>\n<p>The prohibition on collateral attack is less stringent in the case of consent orders, even when they embody assessment which is to be approved by the court.\u00a0 Although subsequent proceedings in relation to the same matter, may be presumptively \u00a0abusive, they may be allowed to proceed if good reason is shown why steps were not taken to challenge the original decision by appeal or otherwise and the claimant has been deprived by either a reasonable opportunity to appreciate that substantially better terms could have be obtained, or has been placed in the position of having to accept a settlement, significantly less advantaged stages which he should have had.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Role_I\"><\/span>Role I<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Barristers are generally expected to dress conservatively in a dark-coloured suit. Wigs are not mandatory, but some judges may expect them to be worn.\u00a0 They were formerly mandatory, but the Courts and Court Officers Act provides that a barrister or solicitor appearing in court \u00a0should not be required to wear a wig of a kind formally worn, or a wig of a ceremonial type.<\/p>\n<p>A barrister\\&#8217;s role in civil litigation will involve preparation of the pleadings, applications and motions at the instruction of a solicitor, appearing at interlocutory or intermediary steps of the proceedings and ultimately advocacy in the trial of the matter.\u00a0 A barrister will attend settlements and will be central in advising clients in relation to the merit of their claim and the potential quantum of damages that might be awarded.<\/p>\n<p>Barristers may not generally receive instructions directly from the public.\u00a0 A direct access scheme exists and Legal Regulation Act proposes a further modification of the principle.<\/p>\n<p>Generally, solicitors will brief barristers by way of a formal written document.\u00a0 This will typically \u00a0contain a statement of facts and issues, together with copies of relevant documents.\u00a0 The documents may include statements by witnesses, relevant transaction documents and reports of experts, as the context requires. The barrister may seek clarification of instructions or \u00a0additional material.\u00a0 Counsel may seek clarification of instructions, which may not disclose all relevant facts.\u00a0 There may be assumptions and implicit matters, \u00a0which needs to be clarified.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Role_II\"><\/span>Role II<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The barrister may be asked to advice on the merits of the claim on the basis of instructions, and prepare documentations to initiate a claim or apply to the court. Barristers, particularly those in the early years of practice, may spend a considerable amount of time drafting most pleadings and motions.\u00a0 Where a senior counsel is briefed, he may provide general advices, but there will typically \u00a0be a junior counsel in the case, who drafts pleadings, motions and applications.<\/p>\n<p>Barristers will advise on proofs at the trial of the action in advance.\u00a0 This is one of the most important functions. It is critical that a barrister advises in relation to the \u00a0production of evidence on all matters required to be proved at the trial. The advice on proofs \u00a0will identify the facts to be proved and the manner in which they may be proved by reference with the law of evidence.<\/p>\n<p>Barristers will generally be involved in settlement discussions in conjunction with the instructing solicitor and client.\u00a0 Settlement meetings are commonly held in the law courts. The barrister will commonly draft the key settlement agreement in written form.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Duties_to_the_Court\"><\/span>Duties to the Court<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Counsel has a duty to his client, fearlessly to raise every issue, and advance every argument however distasteful, if he thinks it will help his client\u2019s case.\u00a0 As an officer of the court concerned in the administration of justice however, he has an overriding duty to the court to the standards of his profession and to the public.\u00a0 This may and does lead to conflict with his client\\&#8217;s wishes and \u00a0what the client thinks are his personal interests.<\/p>\n<p>An advocate may take any point which he fairly believes to be \u00a0arguable, on behalf of his client.\u00a0 However, he is not to usurp the judge.\u00a0 He is not to determine what the effect of the legal argument must be. Counsel must not knowingly deceive the court. If he takes and argues a bad point, it is not misconduct, provided he is not dishonest and provided that he acts in good faith.<\/p>\n<p>A barrister must act independently in the interest of duty.\u00a0 This duty overrides all obligations, including his obligation towards the client. The barristers has a duty to ensure the court is informed of relevant decisions and legislative provisions, of which he is aware, whether or not they are favourable to his client\u2019s interest.\u00a0 Procedural irregularities must be brought to the court\u2019s attention.<\/p>\n<p>Counsel \u00a0must not knowingly or recklessly mislead the court. In the case of an application by one party only, there is a duty to make full and frank disclosure of all the known facts, whether they are adverse or not to the applicant. It is a barrister\u2019s duty to act with independence, in the interests of justice, He must correct misleading information as soon as he becomes aware of it.<\/p>\n<p>A Barrister must not assert a personal opinion of the facts or law, unless requested by the court. A barrister must not ask questions that are scandalous or are intended to vilify insult or annoy a a witness or another person. He must avoid time wasting and incurring unnecessary expenses.<\/p>\n<p>A barrister may not lend assistance to proceedings which are an abuse of process.\u00a0 An abuse of \u00a0process may arise where the litigation process is employed for a purpose for which it is not intended or where a case is brought, knowing it to be dishonest or knowingly conniving as at incomplete disclosure of documents.\u00a0 On the other hand, a barrister is not acting improperly or negligently merely because the claim or defence is doomed to fail.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"CPD\"><\/span>CPD<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Bar Council CPD scheme applies to all practising barristers.\u00a0 Barristers must obtain 10 points during the practice year. Barristers may chose activities relevant to their professional needs.\u00a0 Points are accrued per hour of activity.\u00a0 Barristers must keep records of CPD undertaken, and comply with the terms of the scheme.<\/p>\n<p>The activity must be of significant intellectual or practical content and deal primarily with matters related to the practice of law.\u00a0 It must be conducted by persons or bodies with suitable qualifications. It must be relevant to the practitioner\u2019s immediate or long-term needs. CPD activities may include attendances at conferences, courses and seminars, teaching, training, research or writing or chairing. This may include legal research and postgraduate studies.<\/p>\n<p>The course must be an education programme, seminar, lecture, conference, distance learning, group discussion or training session CPD events organised \u00a0by certain organisations including the Bar Council, King\\&#8217;s Inns, \u00a0groups of barristers, advocates in other jurisdictions, third-level institutions or other professional bodies are automatically accredited as CPD activities.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-6318\" data-postid=\"6318\" class=\"themify_builder_content themify_builder_content-6318 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Liability for Negligence For over 200 years, it was accepted that advocates, including in particular barristers, were immune from suit in respect of the conduct and management of cases in court. This is extended to pre-trial work which was intimately connected with the conduct of the case in court, that it can fairly be said [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[75],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/6318"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=6318"}],"version-history":[{"count":2,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/6318\/revisions"}],"predecessor-version":[{"id":21282,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/6318\/revisions\/21282"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=6318"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=6318"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=6318"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}