I have often come across case management orders where the Master orders parties to obtain Counsel’s advice “on the whole matter” before a certain date.
Usually the order is accompanied by an order that interlocutory applications are to be taken out by a certain date: presumably to encourage parties to seek Counsel opinion early and to discourage late interlocutory applications.
But thinking through the matter on first principle, the phrase cannot literally require solicitors to go to Counsel for advice “on the whole matter” without more.
In a split profession, Counsel doesn’t have direct access to the lay client. She does not have a personal relationship with the lay client and may not understand what lay client wants to achieve.
Just relying on papers, Counsel can advise on merits (i.e. prospects of success at trial), on evidence (i.e. evidence required for success at trial), on other discrete legal issues (e.g. specific interlocutory applications).
But what the client actually wishes to achieve may not be apparent on the papers. It may be a speedy resolution. It may to air grievances. It may be to achieve strategic advantage in a negotiation.
Ultimately it falls on the solicitors to articulate the lay client’s goals in legal terms, and to instruct Counsel accordingly.
Thus, on a purposive approach, the order to obtain Counsel’s advice “on the whole matter” arguably places the burden on the solicitors to review the whole case and seek Counsel on all discrete areas that are necessary in the particular case.