Recent reforms have made it harder to obtain legal advice and representation on a conditional fee basis. Coupled with cuts to legal aid, this means that instructing a solicitor on a traditional retainer is out of reach for many people. As a result, it is becoming increasingly common for solicitors to provide their services on an “unbundled” basis as and when a litigant can afford to pay for them, and for barristers to provide their services direct to members of the public without an instructing solicitor (officially called “public access”, but more often referred to as “direct access”).
I recently wrote an article with Sophie Belgrove on Minkin v Lesley Landsberg, a case in which the Court of Appeal considered the extent of a solicitor’s duties when instructed by a wife to draft a consent order following divorce. The Court of Appeal concluded that the solicitor did not owe the wife a duty to advise her as to the substance of the divorce settlement which she had agreed with her husband. King LJ referred expressly to legal aid no longer being available in financial remedy cases, “no matter the level of hardship caused to the protagonists or the complexity of the proceedings”, to the need for complex orders to be drawn up for the court’s approval, and to the importance to the courts and to litigants in these circumstances of solicitors being able to provide unbundled legal services without being held to have taken on much wider advisory duties. (First published in the New Law Journal, the article is reproduced in full here by kind permission of the NLJ and its editors, Jan Miller and Danielle Monroe: Solicitors’ negligence – Unbundling unshackled – Belgrove & Padfield.)
Unbundled legal services can help bridge the funding gap, but they are not a complete solution. There will always be some litigants or would-be litigants who will be unable to conduct litigation without the assistance of a solicitor. And even for those who do so, there is a risk that important steps which would be taken if a solicitor had conduct of a matter from start to finish on a traditional retainer will be missed and, consequently, that the litigant’s interests may be prejudiced. This is illustrated by Okon v London Borough of Lewisham, a case which has recently caught the eye of legal commentators and journalists. In a complex bankruptcy appeal involving liability for council tax, the applicant was not advised that she should appeal against a particular order, and she did not do so. The deputy High Court judge noted that the applicant “was represented at hearings on an ad hoc basis by relatively junior albeit able Counsel on a direct access basis,” but as he observed, “that is not a complete substitute for being represented by experienced solicitors in a matter such as this”.