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Solicitors’ agents: rights of audience and the Chambers’ advocate

In what circumstances does a “solicitors’ agent” enjoy a right of audience before a court? The answer is likely to be increasingly important, as challenges to solicitors’ agents’ rights of audience appear to be on the rise.

By “solicitors’ agent” I mean an individual seeking to exercise a right of audience as an exempt person under the Legal Services Act 2007 (“LSA 2007”), Sch. 3, para. 1(7). This provision, which replaced s. 27(2)(e) of the Courts and Legal Services Act 1990 (“CLSA 1990”), states:

“The person is exempt if—

  1. the person is an individual whose work includes assisting in the conduct of litigation,
  2. the person is assisting in the conduct of litigation—
    1. under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and
    2. under the supervision of that individual, and
  3. the proceedings are not reserved family proceedings and are being heard in chambers—
    1. in the High Court or county court, or
    2. in the family court by a judge who is not, or by two or more judges at least one of whom is not, within section 31C(1)(y) of the Matrimonial and Family Proceedings Act 1984 (lay justices).”

It might be helpful if such advocates were to adopt a different title, such as “chambers’ advocate”, to avoid any perceived confusion with the historic use of the term “solicitors’ agent” to describe one solicitor acting as a local agent for another solicitor. But regular attendees of the County Court are unlikely to suffer confusion in the use of terminology, as the new usage of “solicitors’ agent” has been widespread for at least a decade.

In my experience, advocates who describe themselves as solicitors’ agents are usually self-employed and the vast majority obtain work via agencies to whom solicitors look to provide an advocate to represent their lay clients in hearings in the County Court and the High Court. Such advocates are not the same as paid McKenzie friends, who are also causing concern for members of the Bar.

At first glance, the statutory requirements appear straightforward. However, on closer examination, the limits of the right of audience are far from clear. A full exploration is beyond the limits of this article. Instead, I will try to highlight some key factors.

Assisting in the conduct of litigation

The advocate’s work must include assisting in the conduct of litigation. A common argument raised against solicitors’ agents is that all they are instructed to do is to exercise a right of audience and that exercising a right of audience cannot constitute “assisting in the conduct of litigation”. Therefore, it is argued, they do not satisfy the first limb of the statutory test.

There does not appear to be any authority deciding this issue. Furthermore, whilst there is a statutory definition of “the conduct of litigation”, there is none of “assisting in the conduct of litigation”. The conduct of litigation is defined by LSA 2007, Sch. 2, para. 4(1) as: “(a) the issuing of proceedings before any court in England and Wales, (b) the commencement, prosecution and defence of such proceedings, and (c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).” Paragraph (b) of the definition was added by LSA 2007.

Whilst there is no specific definition of what constitutes “assisting in the conduct of litigation”, it appears to encompass (amongst other matters) providing legal advice (Agassi v Robinson (HM Inspector of Taxes) [2005] EWCA Civ 1507 at para. 56), gathering evidence (R. (Factortame Ltd) v Secretary of State for Transport (No.8) [2002] EWCA Civ 932) and writing correspondence (Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 W.L.R. 1027 at 1034; 1037). It clearly has a broad remit. The conduct of litigation, meanwhile, must be given a restricted ambit (Factortame, at para. 25) because it is a criminal offence for a person to conduct litigation when not entitled: s. 14(1) of the LSA 2007.

I have heard it argued that since the conduct of litigation and the exercise of a right of audience are separate reserved legal activities, the latter cannot assist in the former. I see no logic in this argument. That exercising a right of audience cannot constitute conducting litigation has no bearing on whether it can assist in conducting litigation. Conducting litigation now includes the prosecution and defence of proceedings. It is hard to see how arguing ones case in court cannot assist in either of these activities. Advocacy is likely to be crucial in the prosecution and defence of any proceedings that see the inside of a courtroom.

In any event, solicitors’ agents may carry out other activities in relation to proceedings. For instance, they may provide advice to the lay client or instructing solicitors as to next steps to be taken in proceedings, further evidence to be obtained or the prospects of a successful appeal. This can assist in the conduct of litigation.

Supervision

The statutory requirement that the advocate assist in the conduct of litigation “under the supervision” of a suitably qualified individual (usually a solicitor) is relatively new. It did not feature in s. 27(2)(e) of CLSA 1990.

Whilst the requirement is relatively new to statute, it is not new to the solicitors’ profession. Annex 21G of the Guide to Professional Conduct of Solicitors 1999 stated that, as a matter of professional conduct, a solicitor instructing an advocate under s. 27(2)(e) should afford appropriate supervision, whether the advocate was an employee or an independent contractor.

The level of supervision required is likely to depend on the circumstances of the individual case, including the competence of the individual advocate (see, for instance, the Law Society’s written submissions to the Court of Appeal in Hollins v Russell [2003] EWCA Civ 718, quoted by Brooke LJ at para. 185).

Any attack on a solicitors’ agent’s right of audience based on the advocate’s supervision arrangements is likely to be highly fact-specific. Furthermore, it may require detailed analysis of the skills of the individual advocate and his or her relationship with the instructing solicitors and any agency involved.

Reserved family proceedings

The right of audience does not apply to “reserved family proceedings”. Such proceedings are “such category of family proceedings as the Lord Chancellor may … by order prescribe” (LSA 2007, Sch. 3, para. 1(10)). The Lord Chancellor has to date failed to prescribe any family proceedings as reserved.

To my knowledge, solicitors’ agents have rarely been used as advocates in family proceedings. However, with cuts to legal aid, it may be that solicitors’ agents (whose fees significantly undercut most barristers) will become a regular sight in the family courts.

Hearing in Chambers

A key restriction to the hearings in which the right of audience may be exercised is that they must be in Chambers. A hearing in Chambers is in contrast to a hearing in open court; i.e. it is a hearing in private: Clibbery v Allan [2002] Fam 261; [2002] EWCA Civ 45.

The general rule is now that a hearing is to be in public (CPR r. 39.2(1)). One might think, therefore, that the right of audience is of fairly limited scope. However, CPR Practice Direction 39A, para. 1.14 states:

“References to hearings being in public or private … contained in the [CPR] … and the practice directions … do not restrict any existing rights of audience or confer any new rights of audience in respect of applications or proceedings which under the rules previously in force would have been heard in court or in chambers respectively.”

This provision has existed as long as the CPR. It appears to require one to look to the old Rules of the Supreme Court (“RSC”) and County Court Rules (“CCR”) to determine whether a hearing is to be treated as being in private for the purposes of the solicitors’ agent’s right of audience.

Much has changed with the CPR. Small claims hearings are now heard in public; under the CCR small claims arbitrations were heard in private (CCR, O. 19, r. 7(3)). Applications are now generally heard in public; under the RSC and the CCR they were generally to be heard in Chambers (RSC, O. 32; CCR, O. 13, r. 1(4)). Appeals are now heard in public; under the RSC appeals from Masters in the High Court would lie to the Judge in Chambers (RSC, O. 58, r. 1(1)). I am not aware of solicitors’ agents attempting to appear before High Court Judges on appeals from Masters. But in light of the above, it may be that they are entitled to do so.

The effect of Practice Direction 39A, para. 1.14 appears to be that solicitors’ agents can have a right of audience at a public hearing provided that the hearing would have been held in Chambers under the pre-CPR rules of court. If that is right, one would need to consider the rules of court as they stood 15 odd years ago to determine whether the solicitors’ agent has a right of audience or not.

I suggest that defining a right of audience by reference to whether or not a hearing takes place in Chambers/private is no longer satisfactory. It is questionable whether it was ever so, given that, in civil cases at least, the decision whether to hold a hearing in Chambers or open court was “generally merely as a matter of administrative convenience” with “no logic or reason” to it (Clibbery v Allan [2002] Fam 261; [2002] EWCA Civ 45, at para. 21).

Exercising a right of audience is now a reserved legal activity. Seeking to exercise a right of audience without entitlement is now a criminal offence. In such circumstances, one would hope that the ascertainment of whether or not an individual possesses a right of audience would not depend on the administrative convenience of the courts prior to the implementation of the CPR.

Conclusion

This article has only scratched the surface of the arguments as to the scope of the solicitors’ agent’s right of audience. Competition for advocacy may tempt barristers to challenge rights of audience more frequently. But such challenges are unlikely to advance their lay clients’ positions and may become disproportionate to litigate – particularly if a detailed analysis of the solicitors’ agent’s supervision arrangements is required.

If individuals appear in court professing to exercise a right of audience that they do not possess then action must be taken both against them and those that instruct them (the latter often seem to escape criticism when rights of audience are challenged). But I think that in many cases this is likely to be a matter better dealt with by the regulators of the legal profession than by opposing parties in litigation. Furthermore, I think that the scope of the solicitors’ agent’s right of audience is something that needs to be clarified to enable all parties to know where they stand.

Winston Jacob / 1st Aug 2015


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