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Augmented Service: How the Bar avoids the pitfalls of funding advice By Matthew Amey, The Judge Limited and Matthew Clark, Cardium Law

The Public Access Scheme (or Direct Access) is a growing alternative to instructing solicitors. The bar portal is currently attracting increasing numbers of entities interested in having a more barrister intense relationship. Many sets of chambers seek to attract Direct Access clients and compete with solicitors for work. Not an easy task where there are just under 10,000 self-employed barristers and approximately 135,000 solicitors. There is a growing perception that solicitors are an initial unnecessary layer of expense often duplicating costs. Direct Access can cut through those costs but there are some pitfalls. In general terms these include such matters as:

manage costs on a limited budget. These type of litigants (as is the case for the majority of litigants) are likely to be cost sensitive and seeking funding solutions. Funding solutions, as many members of the Bar know, are premised on appropriate advice on merits and quantum. This can open the door to the procurement of an ATE policy which then can form the security required by a funder in order to facilitate different types of funding. Currently, there are several things that prevent barristers from effectively advising their clients about the litigation funding options:

At a high level, many barristers will be well versed in how litigation funding and ATE insurance operates in England & Wales but it would not be surprising if the majority, when asked, admitted to knowing very little about these two distinct industries. Few will have had experiences of interaction with the market directly. For example, the following require consideration:

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Dealing direct with demanding clients - both corporate and individuals; Communicating with Defendant lawyers; The paper bureaucracy for each piece of client work; Day to day claim management within a busy diary; The wide scope of costs advice that a barrister must impart; The funding conundrum - knowing how to work with litigation funders and After-The-Event (ATE) insurers (along with the broker networks for each); Coping with voluminous amounts of documents and the new e-disclosure requirements;

The funding conundrum It is logical to surmise that litigants, or potential litigants, seeking Direct Access do so in order to

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1. Experience and knowledge of the market

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What can ATE insurance cover and how do clients fund the purchase of a policy? Should the client seek a complete litigation funding package or is it more cost effective to mix funding with a Conditional Fee Agreement or Damages Based Agreement? What is the most appropriate legal services contract for the client (a barrister has 7 options to select from) and what about conflicts? Does a full cost budget need to be prepared and who will produce it?

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