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This page gives guidance as to how to work with an Advocate so as to get the best out of that professional relationship.
How do I get hold of an Advocate?
There are over 100 Advocates in private practice in Guernsey, but most specialise in specific areas of law to some greater or lesser extent. There are some Advocates who literally never set foot in a courtroom except for rare ceremonial occasions, e.g. those specialising in offshore funds. There are others who specialise in family law others who specialise in criminal law and so on.
If you need an Advocate there are various ways to find one. All the firms are listed in the telephone directory a good number of them have websites, likewise brochures. The Bar Council’s website gives contact details of all firms and links to websites. Perhaps the best way to find the Advocate or firm you need is simply to ask your friends, relatives and work colleagues for their recommendation. You will soon get a feel for which firms or individuals to go to or who to avoid. Another possible source of help is the Citizens’ Advice Bureau. If they are unable to assist you themselves there are various firms which are willing to provide initial advice to CAB clients at no cost.
Once you have found a possible firm or individual Advocate, telephone to make an appointment, alternatively write. If you have a named Advocate to contact then ask to speak to that person or their secretary directly. If it is only a firm’s name you have then ask the receptionist to speak to an Advocate in whichever department is appropriate. A number of the Guernsey firms organise themselves into different departments, for example a litigation department, family department, corporate law department and private client department. This last really concerns wills, trusts, conveyancing and non-contentious matters of the kind we mentioned earlier.
What will it cost me?
This is one of the most important things to establish at the very start. You need to know right from the beginning what employing an Advocate is going to cost.
Advocates generally charge by reference to an hourly rate broken down into units of 6 minutes, i.e. 10 units per hour. If a phone call takes either 1 minute or 5, you will be charged 1 unit, i.e. the hourly rate divided by 10. At first this might seem unjust, but bear in mind the interruption to whatever other work the Advocate was doing, likewise the need for a file note (the Advocate’s record of the conversation, if of any significance) and so on. Hourly rates vary considerably from practice to practice and from individual Advocate to Advocate. Within the firm itself you may find non-Guernsey lawyers or non-qualified legal assistants whose rates are lower than an Advocate’s. Equally, an experienced non-Guernsey lawyer may charge significantly more than a newly qualified Guernsey Advocate.
The important thing is to know what you will be charged. It is a professional obligation of a Guernsey Advocate and his or her firm to give the best information they can concerning the likely cost of their services. Merely knowing the hourly rate will not be enough since you will also want to have some idea of the number of hours which will have to be worked. You might ask for a guideline figure to get to a certain stage in proceedings. You can also ask that fees not exceed a stated figure without your agreement. You should also ask to be billed regularly or at least informed regularly of your fee liability so that there are no surprises. If fees become too costly you need to know sooner rather than later so that you can discuss the situation with your Advocate or take your business elsewhere. If you are looking at a substantial piece of work you might be able to negotiate a more favourable rate. The special circumstances of any given case might justify a request for a more favourable rate e.g. a particularly important case but not much in the way of funds to support it.
There are some cases where the Advocate will be willing to work on credit i.e. not charging until the conclusion of a case. This is quite common in personal injury claims brought by individuals of limited means. The client must be aware though of their liability for the Advocate’s fees, even if that liability is deferred.
Guernsey Advocates are not permitted to carry out work on a no win no fee basis.
Legal Aid
Legal Aid may be available in both civil and criminal cases depending on the circumstances of the case and your financial means. If you think you may be eligible for Legal Aid then mention this to your Advocate at the earliest opportunity. Note, however, that not all Advocates will do Legal Aid work. The Legal Aid system in Guernsey is undergoing significant changes at present moving from a fairly informal arrangement to a statutory basis. Either discuss the possibility of Legal Aid with your Advocate or contact the Guernsey Legal Aid Service at 8 Lefebvre Street, St Peter Port, Guernsey, GY1 2PE (tel. 01481 727934) for further information. The Legal Aid Administrator is Ms Hayley Cooper.
Legal expenses insurance
Legal expenses insurance is a form of insurance which will fund the cost of instructing a lawyer in certain circumstances. It is often an optional add-on to a motor policy. It may also be included within a household policy or a travel insurance policy. Seek advice and guidance from your broker or insurer as to the cost and benefits of such insurance. Check existing policies to see whether in fact you already have the benefit of such insurance. Raise the possibility with your Advocate if you are in any doubt.
Recovering costs from an opponent
Another matter to bear carefully in mind is the fact that in civil litigation you should not expect to recover all of your costs from the opposing party, even if you win. You will also be liable for your own lawyer’s costs, win or lose. If you lose you will most likely be liable for your opponent’s costs in addition. It is only if you win that a costs order will probably be made in your favour but this is generally only for what is called “recoverable” costs or costs on a standard basis. Depending on what rate the firm charges this may well only be two-thirds of the fees you have actually incurred or even less. This is a quite deliberate policy on the part of the Courts in order to encourage cases to settle. It is only if a party has behaved unreasonably (and quite seriously unreasonably in practice) that “indemnity” costs may be awarded. Here you will recover a much higher proportion of your actual costs. However in any litigation you should anticipate no more than the recovery of standard costs, assuming success. Of course, it is particularly important to bear in mind the ability of the opposing party to pay any judgment. There is little point in carrying on expensive litigation against a person only to recover a worthless judgment. A judgment for damages, interest and cost is only worth anything if the judgment debtor (i.e. the person against whom the judgment is made) is good for the money. Again remember that you will be liable for your own lawyer’s fees in any event - equally your lawyer will take into account factors such as the solvency of your opponent as part of the advice he or she gives.
In non-contentious matters there is no opposing party to recover costs from. Put simply you are paying an Advocate to do a certain job and that is the beginning and end of it. Prices will vary from firm to firm. You can certainly seek a fixed price for certain forms of work note however that charges for conveyancing are standardised. Happily the Advocates’ fee for conveyancing work is really quite low. In the past people have confused the charges made by the States and estate agents with the actual fee which the Advocate receives for what is by far the most difficult part of the transaction. At present the charges payable on a conveyance are typically 3% to the States by way of document duty, 1.5% to the estate agent and .75 of 1% plus £110 to the Advocate, i.e. the least of all.
In criminal proceedings Legal Aid is more likely to be available, but by no means always. There is a combination of means testing and an assessment of how serious the matter is, e.g. whether there is a risk of a custodial sentence. At present it seems that you cannot recover your costs from the States in the Magistrates’ Court, even if you successfully defend a summons. Costs orders can be made in favour of a defendant in the Royal Court but are not made in practice. This is not so important when a person is legally aided but becomes of some significance when a person is funding his case privately.
Confidentiality and your Advocate
Don’t be afraid to tell your Advocate everything you think might be relevant to whatever you are consulting him or her about. If you are in doubt as to whether something is relevant then tell the Advocate anyway. What you tell your Advocate is confidential or “privileged” as lawyers say. It is very important that people can seek legal advice in the knowledge that what they say will not be passed on to others without the permission or agreement of that person. This is particularly important in criminal cases. There are very few exceptions to this confidentiality, generally only concerning abuse of the privilege, e.g. if an Advocate is positively assisting a person to commit an offence.
Saving money
Whenever you deal with an Advocate there are ways in which you can help prevent the costs from escalating. Here are some tips:
a) instruct your Advocate clearly, concisely and accurately
b) anticipate the documentation he or she is likely to want to see prepare it neatly in an indexed bundle of good quality copy documents remember to preserve any documents relating to the issues in question, this includes documents which do not go in your favour - if you have a weak case it is better to be told early on rather than find out in the witness box. You also have an obligation to disclose all material documents to your opponent (something which we will return to below in the context of “disclosure” in Civil Proceedings)
c) use a word processor where possible and avoid handwriting
d) if there is work you can do in place of the Advocate then do it, for example, contacting witnesses, making schedules of expenses, gathering together documents and the like
e) avoid making contact with your Advocate unnecessarily bear in mind that you will be charged for each phone call made as well as meetings and correspondence efficient communication saves costs. Remember also that your Advocate is likely to be a very busy person with many other clients to attend to in addition to yourself
f) make use of email this is a particularly efficient way to communicate with most Advocates, you can produce first drafts of documents or amend drafts prepared by your Advocate, learn how to use the track changes function on your word processor, most firms use Word
g) again be willing to listen to and accept the advice of your Advocate, even if you don’t necessarily want to hear what you are being told, you can always get a second opinion if you are still in doubt
h) be willing to compromise in a dispute it takes two to make an argument and it is rare that you will be 100% right to the exclusion of your opponent
i) bear in mind the economics of any litigation people are fond of saying that it is the principle that matters, but principles can be very expensive in practice. If litigation is not cost effective then it is unlikely to be worthwhile outside of those areas where economics is not the issue (e.g. issues relating to children)
j) be willing to work with an Advocate’s secretary in terms of leaving messages, making requests or whatever else
k) in short, be sensible and help your Advocate where and when you can.
Settling disputes amicably negotiation and mediation
In civil or family litigation you can make a huge difference simply by the attitude you bring to a dispute. Early on in any dispute your lawyer should be mentioning the possibility of finding alternative means to resolve the argument. He or she will most likely have explored the issues with the opposing party in correspondence. Lines may already have been drawn however it is essential that you continue to consider ways and means of reaching agreement. One possibility is to consider mediation this is a process in which the parties meet with a neutral third party (normally a lawyer) who will be informed fully about the case and what each party thinks and feels. The job for the mediator is to see whether he can assist the parties reach agreement. He does not judge the parties or the issues his only rôle is to facilitate the making of an agreement if at all possible. Typically the parties share the cost of the process. Again typically everything that goes on in the mediation is confidential as with any other bona fide negotiations (i.e. negotiations carried out honestly and in good faith) to reach settlement. The Court recognises and encourages frank discussions, free from the fear that what has been said or written in the negotiations will come before the Court. The only true exception is when a party expressly negotiates “without prejudice save as to costs”. Even if the other party will not deal sensibly, you should put forward your best offer in such a way that reference can be made to it at the end of any trial. Typically this will take the form of a letter marked “without prejudice save as to costs”. Here you are making an offer which cannot be revealed to the court except on the question, at the end of a case, of who should pay the costs and at what rate. Another possibility where you concede that some money is owing, but dispute the amount, is to pay the admitted sum into court. If the claimant fails to beat the amount in court they will be vulnerable to a costs order being made against them from the time that they ought to have accepted the payment into court. The Judge and Jurats are unaware of the payment in until the end of the case.
It is strongly recommended that the parties to any litigation explore all possibilities for reaching settlement. Litigation is very stressful and distracting. There is a hidden cost in terms of time and effort, quite apart from the money cost.
There are other options it is possible sometimes to appoint an arbitrator, who does indeed judge the dispute. It is common to find arbitrators in building disputes for example.
You are the boss
Remember that you are the boss in the Client-Advocate relationship. You should always take careful note of your Advocate’s advice, but ultimately the important decisions in a case must be made by you. The Advocate will look after day to day matters but you will have to give your instructions on anything of any significance e.g. the plea you wish to enter in a criminal case or the terms of settlement you are willing to accept in a civil dispute. The Advocate will help by advising on the law and setting out the options for you. He will also try to point out the foreseeable consequences of those options. He is there to advise and inform you.
It may happen that you disagree with the advice you have been given by your Advocate. Don’t be afraid to query anything which either you do not understand or disagree with. Ultimately you are free to disinstruct (i.e. stop giving instructions to or “sack”) your Advocate or to seek a second opinion from another firm. Advocates do not always get it right, any more than other professional people. Their obligation is to achieve the standard of the reasonably competent Advocate in all the circumstances of the case. We cannot know all law, any more than a doctor can know all medicine. We cannot always be right. There are many uncertainties in life and the law. However, you are entitled to expect that the Advocate will do his or her best for you even if sometimes the advice you are given is not what you want to hear. It is that objectivity and judgement informed by legal knowledge which is the reason why you consult an Advocate, certainly in any contentious matter.
Ultimately, the Advocate is there to serve you. By working together with a good understanding of each other’s needs there is a much better chance of a satisfactory outcome for you and a more positive experience of the law.
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