The role of the barrister

Straightforward or lower value enfranchisement or lease extension claims may not require the services of Counsel, but property values in the Prime Central London area are so high that the sum in dispute may easily exceed £100,000 on a lease extension, and can run into £ millions on a large collective claim. In the more complex or higher value cases, parties may wish to instruct Counsel to advise on difficult issues that arise during the progress of the claim.

The law of enfranchisement is not straightforward, and taking Counsel’s advice early may save a great deal of pain and expense at later stages in the process. “Early” may be long before a notice of claim is served – for instance it may not be clear whether a particular property qualifies for collective enfranchisement or as to which leasehold interests may be acquired. In complex cases, it often makes sense to have Counsel advise as to the content of an initial notice, perhaps after a site visit.

Counsel are frequently instructed to appear before the Leasehold Valuation Tribunal (LVT). Counsel are specialist advocates and those who deal with enfranchisement work also have a deep understanding of the valuation process and how the Acts should be applied. Cross-examining expert surveyor witnesses can be difficult and employing Counsel can make a real difference to the result. The Tribunal itself will usually appreciate the assistance it will obtain from having Counsel argue the case. The LVT may adopt an informal procedure but the members appreciate that (in PCL cases particularly) they are making decisions about large amounts of real money, and they expect the parties to present their case in a manner that reflects the amount at stake.

In some cases, the enfranchisement process does not proceed smoothly, for example where a dispute arises as to validity of a notice, or as to whether a building qualifies for collective enfranchisement, and the claim may in those circumstances go before a court. In other cases, the result of the LVT determination may be disappointing and an appeal is brought to the Lands Tribunal, and in rare cases (e.g. Sportelli) from there to the Court of Appeal and House of Lords. In these circumstances, retaining Counsel is not a luxury.

Flexibility
There is a degree of flexibility as to how Counsel may be instructed. The traditional basis where a Barrister is instructed by a Solicitor remains the norm, but subject to limitations Counsel may be instructed direct by the public (Direct Public Access), or by a Surveyor or other professional (Licensed Access). If what is required is a piece of advice on one or two issues, then Direct Access may be efficient. Instructing Counsel is not however a substitute for a Solicitor; for example, a Barrister cannot handle client money, deal with correspondence or do the conveyancing.

In the field of enfranchisement, Counsel probably works best as the third member of the professional team, providing specialist advice and advocacy as and when required.