The grant of Senior Counsel – for either an opinion or representation in court - is not automatic. The solicitor must make out a case for engaging Senior Counsel and if they do not the Board will not grant the services of Senior Counsel. As an example it is likely that judicial review proceedings can, in many cases, be competently presented by a junior counsel.
Prior to making an application for Senior Counsel a solicitor must, where it is likely that costs will be recovered:
- Ensure that the client understands the implications for the costs of the case and what will be recovered from the client at the conclusion of the case.
- Seek the client’s approval for the expenditure to be involved.
If you receive an application for Senior Counsel seek the following information:
- The reasons which it is considered essential that Senior Counsel should be engaged.
- Satisfy yourself that the applicant approves the engaging of Senior Counsel.
Grant the application if:
- Junior counsel has already been authorised, or will be simultaneously authorised,
- and the solicitor has made out a case as to the need to engage Senior Counsel in the particular application concerned.
- and any of the following criteria are true:
where an applicant has been granted a legal aid certificate to institute/defend High Court non-family law proceedings e.g. personal injury, medical negligence, professional negligence; where an applicant has been granted legal aid to institute judicial review proceedings in the High Court
- where junior counsel’s opinion has been sanctioned and obtained in non-family law proceedings other than medical negligence and the advices indicate that quantum is in the remit of the High Court. Prior to granting a legal aid certificate to institute proceedings, senior counsel’s opinion should be obtained unless the opinion has been obtained from junior counsel with a particular expertise in the relevant area;
- where there are High Court family law proceedings which involve substantial capital assets and monies and junior counsel states in writing that the services of senior counsel are necessary in the case. The solicitor should also certify that in his/her opinion such services are warranted; and
where there are High Court family law proceedings which involve a complex issue of law and junior counsel states in writing that the services of senior counsel will add significant value to the case. The solicitor should also certify that in his/her opinion such services are warranted.
Consider refusing the application if:
- The solicitor has not made out a case for engaging Senior Counsel.
(Refuse having regard to s24(a) and (b))