Rights of Audience Update

Originally Published 24 March 2017. Updated June 2019

The Bar Council recently published an updated version of the document Acting as a Solicitor’s Agent (The Document - January 2017). The Document sets out the Bar Council’s views pertaining to rights of audience at certain court hearings pursuant to schedule 3, paragraph 1(7) of the Legal Services Act 2007 (LSA) and is expressly stated not to be ‘guidance’ for the purpose of the Bar Standard Board’s Handbook. The Document does not, therefore, form part of the code of conduct for barristers; it has no legal effect and cannot be relied on as legal advice.

The Document refers to two recent county court decisions: McShane v Lincoln (McShane) on 27 July 2016 and Ellis v Larson (Ellis) on 20 September 2016.

In both cases, the same individual, Mr Sisto, was instructed to represent an adult Claimant at a Stage 3 disposal hearing in accordance with the Pre-Action Protocol for Low Value Personal Injury Claims in Road Traffic Accidents. In both cases, it was found that the nature of the hearing meant that the hearing was not “in chambers” and so Mr Sisto could not rely on the exemption at paragraph 1(7) of Schedule 3 of the LSA in order to carry on the reserved legal activity of exercising a right of audience.

Paragraph 1(7) of Schedule 3 of the LSA states that:
“The person is exempt if-
(a) the person is an individual whose work includes assisting in the conduct of litigation,
(b) the person is assisting in the conduct of litigation-
(i) under instructions given (either generally or in relation to the proceedings) by an
individual to whom sub-paragraph (8) applies, and
(ii) under the supervision of that individual, and
(c) the proceedings are not reserved family proceedings and are being heard in chambers-
(i) in the High Court or county court, or
(ii) 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).

The location of the Hearing

As the Bar Council acknowledge in the Document, there is a difference in terminology between the Civil Procedure Rules (“CPR”) and the LSA for describing the location of a hearing, which can and does cause confusion: hearings are either “in public” or “in private” for the purposes of the CPR whereas the LSA refers to whether a hearing is “in chambers”. In McShane, DJ Peake (now retired) held that the hearing was a public hearing and not “in chambers as the term is understood under the previous rules”. In Ellis, DDJ Hampson found that “because the basic CPR rule applies that hearings are in public, then, in my view, that position prevails”. DDJ Hampson did not expressly state that the hearing was not “in chambers”, suggesting that he considered “in public” and “in chambers” to be mutually
exclusive.

The Other Parts of the Exemption

In both McShane and Ellis, the main issue was the location of the hearing. Having determined that issue in the manner detailed above, there was no particular need to consider the remaining elements of paragraph 1(7). Nonetheless, both DJ Peake and DDJ Hampson went on to find that Mr Sisto was not assisting in the conduct of litigation or supervised by “an individual to whom sub-paragraph (8) applies”.

Significantly, the Bar Council and both judgments note that the different terminology introduced by the Civil Procedure Rules (i.e. private/public) did not alter the position in respect of any existing rights of audience (CPR 39PD 1.14). So, if Sisto had been attending a hearing that was ‘in chambers’ before the introduction of the CPR, he would have complied with paragraph 1(7)(c) of the test.

Whilst not required to do so, both judges went on to consider the other aspects of the test and found that Sisto was not assisting in the conduct of litigation or instructed/supervised by a solicitor (paragraphs 1(7)(a) and (b)).

Applicability to the Law

Neither McShane nor Ellis are relevant to an individual instructed by LPC Law for the following reasons:

1. For hearings that are not “in chambers”, LPC Law will instruct a solicitor, solicitor-advocate or barrister to attend. In that regard, LPC Law agrees with both DJ Peake and DDJ Hampson that Stage 3 disposal hearings for adult Claimants hearings are, on balance, not “in chambers”.

2. Neither judgment expressly sets out the basis by which Mr Sisto, the individual in question in both McShane and Ellis, came to be instructed. It is implicit from the judgment in McShane that Mr Sisto was not instructed or supervised by a solicitor in relation to either case because the solicitors that were conducting the litigation and on the record as acting for the Claimant, the party that Mr Sisto was purporting to exercise a right of audience on behalf of, had instructed an agency to arrange representation at the hearing. In contrast, LPC Law is a firm of solicitors, not an agency, and individuals instructed by LPC Law are instructed and supervised by a solicitor from within the firm.

3. There has been no suggestion by either DJ Peake or DDJ Hampson since handing down their judgments that individuals instructed by LPC Law to attend hearings in chambers are not exempt in accordance with paragraph 1(7): since their respective decisions were handed down, individuals instructed by LPC Law have appeared in numerous hearings before both judges.

4. The Bar Disciplinary Tribunal have considered whether an individual instructed by LPC Law to attend a hearing was “assisting in the conduct of litigation” in accordance with paragraph 1(7) and concluded that they were. To conclude otherwise would create an absurdity and defeat the purpose of the legislation because an exempt person would then not have to be instructed and supervised when exercising a right of audience. As an aside, the BSB has previously given a number of their members who exercised a right of audience in this way a reduction of up to three months on their pupillage as a result of the experience they gained from attending hearings in chambers.

Additional Considerations

The Bar Disciplinary Tribunal has considered whether an individual instructed by a firm of solicitors to attend a hearing was ‘assisting in the conduct of litigation’ in accordance with paragraph 1(7) and concluded that they were.

It appears that, in both McShane and Ellis, the solicitors for the claimants had instructed a non-regulated company to arrange representation at the hearing and this was why Sisto did not satisfy paragraph 1(7)(b). Apparently Sisto was not a solicitor’s agent at all. Individuals instructed and supervised by a solicitor (even if they are not the solicitor on the court record as acting for that party) are in a different position to Sisto. This is reinforced by the fact that both judges have heard exempt individuals directly instructed and supervised by a solicitor in numerous hearings since handing down their judgments.

Was an “offence” committed?

Commentary on this topic often focuses on it being a criminal offence to exercise a right of audience if not entitled to do so (section.14(1) LSA). Importantly, section.14(2) LSA makes clear that no offence is committed if, in effect, there was no intention to do so. For that reason, it is inconceivable that an individual instructed by a firm of solicitors to attend a hearing in chambers (following a longstanding practice that pre-dates the Courts and Legal Services Act 1990) could be found to be committing an offence.

In fact, any issue arising from individuals attending hearings in chambers in this manner would most likely be a regulatory issue for the solicitor instructing and supervising that individual.

The outcome

Both McShane and Ellis were decided after the document was originally issued but have no binding authority. Given that there have been no recent changes to the relevant legislative provisions (the last of which came into force on 1 January 2010) but there have been recent changes to legal aid, court fees etc. which have caused difficulties for the junior bar, it is hard not to wonder whether the document has, in reality, been produced by the Bar Council seeking to undermine competition in the legal services market and to generate more work for the junior bar.

Ultimately, the question of whether an individual is exempt in accordance with paragraph 1(7) can only be determined on a case-by-case basis, a point acknowledged by the Bar Council, because the test is fact-sensitive depending on the individual and the type of hearing.

Update June 2019 - Other Solicitor Rights of Audience disputed examples

In National Westminster Bank -v- Smith (27th February 2019) rights of the audience was determined in an application for summary judgement. The Deputy District Judge was asked to consider whether an applicant for a summary judgement was in ‘chambers.’ The judge held it was not in chambers and as such the representative did not have a right of audience. In this case, the claimant was ordered to pay costs for the hearing. Furthermore, the Judge declined to hear the claimants representative on the issue of costs due to the fact they had no right of audience. In view of the foregoing, it is submitted that this approach was flawed: had Deputy District Judge Leach adopted the approach suggested by District Judge Peake, in view of CCR Order 13, rule 1(4), he ought to have concluded that such applications are “in chambers”.

Rights of Audience summary

In what circumstances does a “solicitors’ agent” enjoy a right of audience before a court?
According to the Legal Services Act, unregistered individuals or a solicitors’ agent may appear in chamber hearings if they are assisting in the conduct of litigation generally and under the instruction & supervision of a solicitor.

Where can I find information on the Legal Services Act 2007? Information on the Legal Services Act 2007 can be obtained on Legislation.gov.uk. Here, you will be able to view all the details that will be regularly updated to match the latest standards. Inbrief.co.uk also provides information on the Legal Services Act 2007.