How to Instruct Counsel
Information on instructing an Advocate for Solicitors in Scotland
The Scottish Bar is generalist in nature and the Murray Stable in particular is able to offer counsel experienced in a very wide range of work. Stable members have given an indication of their areas of practice in the searchable database and solicitors may find it useful to search through this. Some counsel have particular expertise in these areas but the listings are not comprehensive. The individual members pages give more information about each advocate. The best source of guidance for those wishing to instruct Counsel is the clerk. Iain Murray and his deputies are well placed to offer agents advice on the availability, suitability and costs of engaging counsel. They can be contacted by their direct line telephone numbers or by e-mail. In the unlikely event that we cannot provide suitable counsel for your particular case we would be pleased to check the availability of counsel in other stables.
Different considerations apply depending on whether or not practitioners have a particular Counsel in mind for the work concerned.
Where the practitioner is not instructing a named Counsel
This may happen where:-
- The practitioner has not instructed Counsel before;
- The practitioner is seeking advice in a specialised field but does not know which Counsel have appropriate expertise;
- A particular Counsel is unavailable and an alternative is sought.
The clerks have access to the diaries of all Counsel and can readily assess availability. We know the areas of experience and expertise of Counsel in this stable and often in others, and are in constant daily contact with other clerks. We can advise a practitioner quickly on a choice of Counsel.
The advice given by clerks will cover whether Senior or Junior Counsel should be instructed. As a general guide, Queen’s Counsel, who will have at least thirteen years’ experience at the Bar, do not normally draft but may revise written pleadings and other documents. If drafting work is required then Junior Counsel should normally be involved, with or without a Senior.
Queen’s Counsel may be instructed alone. However, they have the right to decline to act without a Junior and may advise that in certain cases, for example appeals to the Inner House of the Court of Session, the instruction of Junior Counsel would be wise.
Country practitioners are reminded that no Edinburgh correspondent is required and they can instruct Counsel directly or through the Advocates’ clerks. Strictly speaking, an Edinburgh correspondent is not required for Court of Session cases but it can be very difficult administering a litigation without local assistance.
Where the practitioner has a particular Counsel in mind
Letters of instruction should be sent directly to Counsel’s Clerk at Parliament House. Fax or email may also be used. In all cases practitioners should set out precisely what is wanted from Counsel and draw attention to any relevant time limits or other constraints.
If the particular Counsel cannot undertake the instruction within a reasonable time or is not available on the relevant date, the practitioner will normally be contacted without delay by Counsel’s Clerk to explain the problem and to seek an acceptable solution.
What papers should be sent to Counsel?
No special rules apply here. However, some guidelines may be of use to those not familiar with the instruction of Counsel. An important general point to bear in mind is that while a practitioner may have many letters and documents relating to a case, a careful selection of the papers to be sent to Counsel is likely to produce a quicker and more cost-effective response. Original documents, plans, contracts, bank statements, photographs etc should never be sent.
Where a written opinion is required, the best way of proceeding is for the practitioner to prepare a written request known as a Memorial, setting forth clearly and succinctly:
a) the facts, including details of correspondence with any other interested parties
b) the apparent legal issues involved (identifying authorities thought to be relevant)
c) the precise questions which in the practitioner’s view require to be answered
It is vital for Counsel to be told precisely why a consultation is being held. Surprising though it may seem, instructions often omit to mention the purpose of the meeting, e.g. that a Proof or Debate is imminent or that an offer has to be considered. If a Memorial is not to be sent, for example, where a consultation is instructed in advance of a written opinion, a careful selection of relevant papers will help Counsel identify the crucial issues.
Practitioners should send Counsel all relevant precognitions, expert reports, correspondence and other items. Again a careful selection of papers is most likely to help Counsel to focus the critical issues effectively.
For a legal debate all that is required, unless Counsel advises otherwise, is the Closed Record and any productions referred to therein. Failure to provide Counsel with an up-to-date Record and copies of the relevant productions can cause serious problems.
For litigations involving formal written pleadings, the documents needed for a Debate are required also for a Proof. Practitioners should always ensure that Counsel has a copy of the originating application to the particular Court or tribunal and of any answers. In addition, Counsel must hav
- a list of the witness statements for each, and also,
- a list of all the productions in the case and numbered copies of each. Details of any prior settlement discussions will also be required, along with a clear indication of the extent of Counsel’s authority in that connection.
It is unusual (and extremely unwise) for Counsel to be instructed for a Proof or final hearing without first having had a consultation to discuss evidence, tactics, prospects and possible settlement with the practitioner and normally also with the client.
The documents required vary greatly from case to case, and little general guidance can be given. However, as a rule, the principles outlined in relation to Debates and Proofs will apply. Again, it is prudent to consult Counsel, well in advance of the hearing, on such matters as grounds of appeal, prospects of success, and the identification of necessary documents.
For trials, Counsel should always be instructed with a copy of the indictment or complaint, copies of any additional notice or special defence, numbered copies of all productions lodged (including especially the transcripts of any statements by or interviews of the accused), a reasonably comprehensive precognition from the client, and such other witness precognitions or statements as are in the solicitor’s possession. However, it is preferable to instruct and consult with Counsel, prior to the expiry of relevant time limits, as to what documentation ought to be obtained and/or lodged.
It is often useful to involve Counsel in a Criminal Appeal at an early stage. Firstly, Counsel can provide an opinion as to the prospects of success, which may be a relevant factor in deciding whether to seek interim liberation pending the appeal. Secondly, Counsel can be instrumental in drafting the grounds of appeal or the application for a Stated Case which will form the only submission to a sift Judge in an application for leave to appeal. In the event that a single sift Judge refuses leave to appeal, Counsel can then be instrumental in drafting the submission appealing the decision of the single sift judge. For appeal hearings, copies of the trial judge’s report, the charge (if extended) and the grounds of appeal or, in summary matters, the stated case are the bare minimum required.
It is normal practice of Members of Faculty to charge a daily rate for hearings, and in other circumstances to seek a fee in respect of each item of work instructed. Unlike Counsel in England and Wales they do not normally seek a brief fee, i.e. a lump sum for considering the papers prior to a hearing commencing. However, a cancellation fee may be charged where a case has been instructed but does not proceed.
The fees charged by Counsel may vary considerably depending on the nature and complexity of the work and the seniority of the Counsel instructed. For private work, fees may be negotiated at rates representing excellent value for money. For legally aided work, fees are subject to statutory regulation. In appropriate cases Counsel may be prepared to act on a speculative basis where neither private funding nor Legal Aid is available. In such cases Counsel will not be entitled to a fee unless the action is successful either by way of a negotiated settlement or a Court decree.
Detailed arrangements relating to Counsel’s fees are embodied in the 2008 Scheme for Accounting for and Recovery of Counsel's Fees [pdf-93.2kB], which applies to work in cases first instructed on or after 1 January 2008, and the 2002 Scheme for Accounting for and Recovery of Counsel's Fees [pdf-156kB], which applies to work in cases first instructed before that date
Those unfamiliar with the instruction of counsel may find it helpful to consult the Guidelines for Solicitors on the Instruction of Counsel.
Counsel are skilled in the provision of advice and in advocacy, both written and oral. The Faculty is committed to maintaining the high standards of service which both clients and practitioners are entitled to expect.
The Faculty has a detailed written Code of Conduct [pdf-630kB], subject to revision from time to time, and a written set of rules for Disciplinary Rules [pdf-103kB] which can be consulted by practitioners if required. In addition, the Murray Stable publishes a client care statement [pdf-73.5kB] which describes what instructing solicitors are entitled to expect from the stable and its members.