Unbundling: no place to hide

Unbundling – legal help on a discrete segment of a civil case including on merits at the start, the trial advocacy or the terms of a Tomlin order at the end, or the drafting of factual witness statements in the middle – is here to stay. Are you going to play or hide from it as the bar unbundles with relish and takes on the litigation work to which it will lead?

For many, unbundling is now the only route to expert legal help. This summer if you read the final Briggs report while waiting in the ice cream queue, you will know that unbundling and the online court are set to become intimate friends. My research for Breaking Law shows a multitude of pro bono projects in which solicitors are increasingly involved, but that unbundling is anathema unless sought by an established client who will not spread boot muck onto the reception carpet and who can produce an up-to-date psychiatric report that they have never been treated for litigation mania.

Of course, solicitors are terrified of an unbundling negligence claim. They should have been appeased by the Court of Appeal in Minkin v Landsberg [2015] EWCA Civ 1152. There, the claimant instructed the defendant in connection with the redrafting of a financial remedies order after the original draft had been rejected by the judge. When she later came to regret the agreement she had made, she sued the solicitor for damages, alleging that she should have been advised or warned against going ahead with it as she could have done better. Her claim was thrown out, as was her appeal. The Court of Appeal ruled that the defendant had not been under a duty to give the broader advice or warnings for which the claimant had contended.

There would be very serious consequences for both the courts and litigants in person if solicitors felt unable to perform unbundling services for fear of being sued in this way.

Unbundling is an invaluable service. Nevertheless, it is vital that where a solicitor is consulted for the service, the limitations of what they are doing is carefully set out in writing.

The Law Society has recently updated its practice note on unbundling. It advises that PII insurers should be notified of an intention to unbundle which could have an impact on premiums. However, it has no stomach for creating a public register of solicitors available for unbundling services, and local law societies generally demonstrated to me an equivalent level of enthusiasm for registers on their patches.

But I warn you, my learned friends are far more enthusiastic. Direct access for advocacy is exponentially gaining ground. For civil direct advocacy, barristers are typically charging £500 for up to one hour, £1,250 for up to three hours and £2,000 for the day, and around £250 per hour for advisory work (with VAT on top).

And the number of barristers prepared, with authority, to carry out litigation work continues to increase. One litigating silk has come a cropper on costs; another litigation junior has triumphed on behalf of around 250 buy-to-let tracker mortgage borrowers who took on West Bromwich Mortgage Company.

My own experience on the district bench of the standard of litigation work emanating from the bar is that it is frequently poor: the back-up is missing. Be that as it may, the fight is on and you need to enter the ring before the lure of counsel, in posh chambers no less, becomes irresistible to even more litigants, existing and would-be.

Unbundling is a service that the public needs more desperately than ever. In their interests and yours, you should be providing it.

Stephen Gold is a former district judge and author of Breaking Law, published by Bath Publishing