Guidance for instructing advocates

I am often instructed in County Court proceedings before District Judges. The following guidance is intended to assist instructing solicitors in ensuring that best value is obtained when using a remote advocate.

1/ Many county courts block-list applications, as opposed to trials, at, say, 10:00 or 14:00 for hearings in the morning or afternoon session respectively. For last minute applications they can be listed as early as 09:30. It is generally good practice to be at court around 30 minutes before the listed time. This time should, ideally, be used in conference with the other side. Often matters can be resolved in that time or, alternatively, important information gathered. Ideally one will already have up to date instructions from the solicitor by that time and where documents are missing there is an opportunity to obtain them before one leaves for court (on occasion) and also that when one has a big list, some solicitors can be relied upon to have provided updated instructions or at least be on the case to get figures etc well ahead of the day getting very busy.

2/ Clear and helpful instructions are preferred;

3/ Solicitors should, ideally, have a position in relation to offers that may be made by the Defendant in advance of the hearing. This saves time when the solicitor has to call the client and then call the advocate back by which time the matter may have been called on.

4/ Sending large documents at the last minute is unhelpful. In particular sending the entire file a couple of days prior to the hearing is singularly unhelpful. Obtaining documents at court is no longer to be relied upon. In many cases the court counter is only available by appointment, and in any event the court service charges 50p per sheet, including cover sheet, for any faxes received (and this also applies to e-mails that are printed) unless the document is addressed to the judge.

5/ Copying previous instructions into the bundle is no substitute for the preparation of a simple chronology or for providing updated instructions. The instructions should contain the order sought clearly on the first page. If the advocate has to search for the instructions, something important is likely to be missed due to time pressures.

6/ An advocate's attendance note is often more helpful than a copy of a previous order as it includes the background to how the order came about (if contentious);

7/ Sending the entire mortgage terms and conditions is not often necessary. Ideally the witness statement will refer to the specific section relied upon for, for example, the right to possession when two months' arrears have accrued, or the right to appoint receivers. Many solicitors do not include the terms and conditions and these two sections would be helpful but to include them without thought wastes time and paper.

8/ For consumer credit and other contract matters, however, a LEGIBLE copy of the terms and conditions is essential. Scanned nth generation copies which are illegible are of no use to the advocate and often cause new foms of judicial rage in the hearing.

9/ The habit of some firms of including the entire record of Claimant-Defendant telephone communications history, which often doubles the size of the bundle, is pointless as these documents are privileged and cannot be disclosed and moreover often contain jargon that is not readily decoded by the advocate. They add no value and are no substitute for instructions or contents of a witness statement;

10/ The habit of some firms and/or Claimants of sending screen dumps in lieu of an account history properly presented should be deprecated. These documents are by and large illegible and/or difficult to decode and serve to irritate the judiciary. They are simply a waste of time. Claimants should be encouraged to present account history information in a straightforward tablular format with properly written headings and notes where applicable at the end.

11/ Advocates should not be asked to obtain an order for possession forthwith unless either it is an action against trespassers or the property is empty. District judges will not make such an order and it is pointless to ask for an order in such terms. In general, there is no point asking for an order that it is clear that the court will not make. This does not endear the advocate to the judge (as one has to seek the order sought) and gives the impression that the Claimant is either over-aggressive or that the solicitors do not know what they are doing. A judge may, in such circumstances, be more inquisitive as to compliance with procedure, with unhelpful result.

12/ The instructions should be clear where the advocate has a discretion to agree a compromise autonomously. Additionally, where there is a specific requirement to seek leave to appeal under certain circumstances, this should be clearly stated. An advocate can use his or her judgment and ask for leave to appeal when the court has, in his or her view, made an error of law or mis-used discretion, but cannot be expected to second-guess the view of instructing solicitors on every aspect. Equally if the client is unlikely to proceed with an appeal unless the order is completely wrong this should be stated, to avoid the matter being stayed unnecessarily for an appeal to proceed.

13/ Expensive 0870, 0845 and 0844 numbers should be avoided. The advocate is usually calling from court using a mobile 'phone and these numbers are very expensive to call from mobiles, typically 40p per minute. If the instructing firm only has such numbers available, consider giving the advocate a main and alternate mobile number to use. This is to avoid the advocate's fee being consumed by telephone calls to clarify instructions!

14/ Scanned pages can be helpful or unweildy. Ideally your scanner (or scanner system) will be set up to produce monochrome copies at no more than 150dpi. Any larger, or including colour, will rapidly increase the file size. If you budget on 100KB per page a 50 page document will be around 5MB, which is large enough. The same document being 12MB or even 40MB is utterly unwieldy and will be very difficult to download and use on a mobile device at court if needed. Please check with your IT department to make sure that the scanner settings default on the side of efficiency.

15/ Please use PDF or Word 97 documents only. Please do not use JPEG (.jpg) or TIFF image file formats, especially for multi-page documents. Although they are slightly larger, PDF documents are to be preferred. The formatting in the new Microsoft XML documents is very unweildy and should be avoided.

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