The practice of solicitors instructing their clerks and agents to attend chambers hearings is a very old one. The “unqualified servants” of solicitors’ common law rights of audience were incorporated into legislation by section 27 of the Courts and Legal Services Act 1990, which was in due course replaced by Schedule 3 sub-paragraph 1(7) of the Legal Services Act 2007 (the Test).

Unfortunately, the language of the Test is not easy to understand without a detailed study of its context and an understanding of the history of rights of audience. Indeed LPC Law has faced sporadic challenges to advocate’s rights of audience over the years and written articles on this issue: in 2017 surrounding the definition of “assisting in the conduct of litigation” and again in 2019 in relation to what does “in chambers” mean?

On 5 February 2020, Halborg v. Apple (UK) Ltd & O2 Holdings Ltd, the Claimant who was also a solicitor acting through his own firm, raised such a challenge, to a Mr Erridge, instructed by LPC Law representing the 1^st Defendant. Deputy District Judge Balchin dismissed the challenge, but allowed the Claimant leave to appeal, noting that the terms of the Act were outdated.

In March 2022, an Appeal hearing was heard before South Eastern Circuit Judge HHJ Backhouse and Judgment handed down on 4 May 2022. HHJ Backhouse not only found that DDJ Balchin was correct to find that Mr Erridge had a right of audience, but provided a comprehensive analysis of the legislation. The decision is by far the most detailed and considered of any concerning Schedule 3 paragraph 1 (7) of the Legal Services Act 2007 and identifies a number of first instance decisions which were, in Her Honour’s Judgment, determined incorrectly.

The decision leaves no doubt that LPC Law’s advocates are entitled to exercise a right of audience in chambers hearings, as they act under the instruction and supervision of a solicitor at LPC Law. Below is a snapshot overview of HHJ Backhouse’s determination regarding the various heads of the test.

“Assisting in the Conduct of Litigation”

• HHJ Backhouse concluded that the words ‘assisting in the conduct of litigation’ are sufficiently broad to include advocacy, as are the terms ‘prosecution’ and ‘defence’ which are contained within the definition of the conduct of litigation at LSA Schedule 2 paragraph 4. ‘There is no basis for construing those terms narrowly’ – [81].
• The advocate was assisting in the defence of the claim by his advocacy in support of the application and therefore came within the broad language of ‘assisting in the conduct of litigation’ – [82].
• Even if wrong, HHJ Backhouse was satisfied that the advocate’s non-advocacy work meant that he was ‘assisting in the conduct of litigation’ – [83].
• She noted that it was ‘important to remember’ that Sch 3 sub-paragraph 1(7)(b)(ii) only requires the assistance to be given generally, not in relation to the particular proceedings – [72].
• HHJ Backhouse did not find either of the first-instance judgments in McShane v Lincoln or Ellis v Larson persuasive in relation to the question of what constitutes ‘assisting in the conduct of litigation’ – [77].
• HHJ Backhouse was referred to, and considered, the document titled, ‘Acting as a Solicitor’s Agent’ prepared by the Bar Council’s Legal Services Committee – [18-20]. She did not ‘derive any assistance’ from the document, which expressly states that it does not constitute guidance for the purposes of the BSB Handbook I6.4, or legal advice, and was ‘hedged about with caveats’ – [77].

Supervision

• HHJ Backhouse held that it was not the court’s role to enquire into the adequacy of supervision by solicitors to any particular person who appears as an advocate; that is a regulatory function – [101].
• She further considered that the Court of Appeal judgment of Hollins v Russell [2003] EWCA Civ 718 suggests that it is for solicitors to decide both the system for, and the level of, supervision required in any particular circumstance – [96].
• She held that DDJ Balchin was right to accept what he had been told regarding the advocate’s supervision arrangements – [101].
• LPC Law was held to provide ‘significant levels of training, both initially and on an ongoing basis’. In HHJ Backhouse’s judgment, LPC Law operates a system which allows the firm to oversee and direct its advocates, ensuring that advocates are competent to perform, and do perform, their jobs competently – [98].

“In Chambers”

• HHJ Backhouse held that the CPR distinction between hearings ‘in public’ and ‘in private’ was not the test for what is ‘in chambers’ [126]. Under the CPR, a hearing in the judge’s room (that is, in chambers) may be in public or in private, the latter being ‘secret’.
• She held that the phrase does not mean the actual room in which the judge happens to be sitting, since rights of audience cannot depend thereon – [112-113].
• She agreed that it was necessary to differentiate between a private chambers hearing and a private hearing under the CPR, the latter being one from which the public is excluded (referred to under the previous County Court Rules 1981 as ‘in camera’) – [115].
• HHJ Backhouse held that the correct method of determining when the proceedings are being heard ‘in chambers’ is to ask whether the hearing in question is broadly of the type of hearing that under the County Court Rules 1981 would have been heard in chambers (rather than in open court) – [133].
• The fact that chambers hearings nowadays are mostly fully public makes no difference to their being in chambers, and does not alter their essential character [127] and 132].

Conclusion

HHJ Backhouse’s judgment is that advocacy itself is ‘assisting in the conduct of litigation’ – that is the plain and natural meaning of the phrase, which is sufficiently broad to encompass advocacy. Even if that is not correct, the LPC Law advocate’s non-advocacy work was assisting in the conduct of litigation in any event.

The advocate was supervised and instructed whilst they were assisting in the conduct of litigation. The Judge at first instance was right not to make detailed enquiries into the supervision arrangements in place, which is instead a question of professional conduct, and a matter for the relevant regulator.

HHJ Backhouse further held that ‘in private’ does not mean the same thing as ‘in chambers’, and that one must look to the pre-CPR position to determine whether a hearing is in chambers or not.

Having attended over 1 million hearings since 1994, this judgment is welcomed by over 200 LPC Law advocates who continue to attend hearings on a daily basis, as exempt persons under the Legal Services Act 2007.