Can’t hear you…

There is a fascinating article in the 23/09/2010 Gazette by DJ Robert Hill on rights of audience in County Court hearings in chambers and the effect of the Legal Services Act 2007

While not strictly housing related, it is of relevance or potential use given the substantial use of ‘Legal Practice Clerks’ and the like as ‘advocates’ by mortgage lenders in possession claims. It would possibly also extend to officers of ALMO housing managers – e.g. Homes for Islington. (In this respect, see also Islington LBC v A Rexha (2006) Clerkenwell County Court 6/12/2006 and Hackney LBC v Spring (2006) County Court 18/9/2006, although both of these cases concerned the County Courts Act 1984 and the Courts and Legal Services Act 1990 rather than the Legal Services Act 2007). I would presume that any officer of an RSL would already need the court’s permission under CPR 39.6.

I won’t repeat the arguments made in the article, but the overall thrust is that only those who are qualified advocates (barristers, solicitors, Ilex, Cost Draftsmen) or who are directly employed by solicitors (trainees, paralegals etc. for whom the solicitors take direct responsibility and supervise) have rights of audience as advocates in chambers hearings, unless there has been a specific grant of rights for that person in that particular case. At the core of the argument is that all of the approved bodies who can authorise rights of audience also have strict disciplinary processes for abuse of or misbehaviour in that role. There is no place for unqualified advocates who are subject to no such disciplinary process. There is also the question of liability for wasted costs orders.

In the case that gave rise to the article, an LPC graduate purported to be advocate for the claimant and was described by the Claimant as a ‘solicitor’s agent’. The DJ found that;

‘Solicitor’s agent’ is not a term used in the 2007 act. The practice of solicitors using other solicitors as local agents is well-established. Rather than attend a short hearing in a distant city, a solicitor would instruct a solicitor in that city to attend as an agent. This practice is still recognised in rules of court (see, for example, rule 38.3 of the Supreme Court Rules 2009). Indeed, every solicitor who had a litigation practice outside London used to have a firm of solicitors in London who acted as their London agents. The key point in all this is that the agent of the solicitor is also a solicitor or an employee of that solicitor for whom the solicitor is responsible.

The ‘advocate’ in this case was not an employee of a solicitor. The DJ found that he was engaged in the provision of advocacy services and only advocacy services, he had no rights of audience and dismissed the claim.

So, potentially a useful tool for those defending a mortgage claim against such an ‘advocate’, and a warning to the claimants as to who they instruct to represent them.

About Giles Peaker

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts, and still is Nearly Legal on Google +.
Posted in Housing law - All, Mortgage possession, Possession.

63 Comments

  1. ALMOs are stuck in a couple of different ways:

    1. Unless they have a waiver from the Law Society, a solicitor employed in house by an ALMO can only act for their employers, eg Hackney Homes and not LB Hackney; and

    2. My understanding of the ILEX rules is that a member must go on to earn the separate and extra advocate qualification, allowing them to be heard in the County Court.

    Qualifieds in other jurisdictions and ILEXs – as well as ALMOs without waivers are all fair game.

    I’m just amazed that the solicitors in the above article waited to later to make an application to set aside, when the agent shouldn’t have been heard in the first place.

    • Yes
      On 1. very true,and so no good for a possession claim where the LA is the landlord and the ALMO simply the manager.
      On 2. perhaps, but an Ilex employed by a solicitor could be heard in chambers in the same way as a paralegal.

      They didn’t wait to make an application – the agent wasn’t heard, hence the claim dismissed, which was the order against which the set aside was sought.

  2. lpc certainly aren’t perfect, as an organisation per se or as a firm to work for (technically they insist all their advocates are self-employed). however it is exceptionally rare that a dj will refuse to hear a ‘solicitor’s agent’ (whether or not that is a valid term, that is what they are universally called).

    lpc brief their advocates pretty carefully on the basis of their right of audience (s27(2)(e) of the Courts and Legal Services Act in that they are ’employed … or otherwise engaged to assist in litigation … under instructions given … by a qualified litigator’.) the ‘Guide to the professional Conduct of Solicitors 1999’ Annex 21G clarifies the above provision in that the SA may be ‘either an employee of the solicitor or an independent contractor.
    so probably not worth getting too excited if you are trying to stop them being heard.

    the argument against trainees or paralegals is twofold: 1)they would be way more expensive; lpc charge clients around £70 for an attendance;
    2)trainee/paralegals would seriously struggle – especially without some fairly specific training. they are usually the people actually dealing with the instruction and tend to have a very vague idea of what happens in court.

    on the issue of SAs’ ability as advocates: many are waiting to go into pupillage, and may have been doing 7-8 possessions/charging orders a day for some months. they are generally fairly able (remember the vast over-supply of bvc graduates?) and very often way more experienced and knowledgable in their tiny areas of law than many counsel of several years call. of course, these things vary and SAs are by no means universally excellent, but they are always well-practised in their niche market.

    and by the way, ‘just sayin’, a pound to a penny the application to set aside was made by a SA as well. they do loads of those too!

    • Whoa Simply, I think you missed the point – perhaps several. First, it is not the Courts and Legal Services Act at issue, it is the Legal Services Act 2007 which repealed the CLSA (in part). The Guide to Professional Conduct is neither here nor there as, if the argument about the LSA 2007 is right, the Guide can’t trump statute.

      The rest, I’m afraid, is special pleading – and also missing the point that there is no accountability. You assume that the [‘advocate’] actually is instructed by a solicitor/qualified litigator. I know as a matter of fact that this is not necessarily the case (and it would make a nonsense of your costs argument if they were so instructed. The solicitor would be racking up the costs anyway. The cheapness of the ‘advocate’ won’t be cheapness passed on). So, definitely worth a challenge – who has instructed the ‘advocate’?

      Then, what about the professional accountability point – for your self-employed contractor is subject to no professional body. Ability as advocates is a strawman. I didn’t raise that and neither did the original article. The issue of sanction if the advocate goes haywire, though, is important.

      Plus, I very much doubt the application to set aside was made to that Court by an ‘advocate’. If it was, it failed anyway. Note this DJ sits on the CPR committee.

  3. so if i had read the article before presenting my submissions it would have helped!

    CLSA 1990 repealed by legal services act 2007 – yikes. well, according to opsi, it repeals certain parts of it, so maybe the district judge could have been more specific, but yep, he’s on the money with repeal of s27 (upon which i was so unwise as to rely above).

    and i have to confess that one of the provisions he quotes (3 of schedule 3) is rather beyond me:

    3(1)A “right of audience” means the right to appear before and address a court, including the right to call and examine witnesses.

    (2)But a “right of audience” does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right.

    lord help us! answers on a postcard in english please – unlike the provision (i think the draftsperson could take a lesson from sir benjamin cherry).

    but i would (with respect) take issue with the logical thread of the district judge’s argument as follows:

    1(7) and (8) of Schedule 3 on exempt persons provide:

    (7)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 being heard in chambers in the High Court or a county court and are not reserved family proceedings.

    (8)This sub-paragraph applies to—

    (a)any authorised person in relation to an activity which constitutes the conduct of litigation;

    which to me appears to mimic exactly the effect of the repealed section 27 of CLSA 1990. the district judge prays in aid D v S (Rights of Audience) a case from 1997. and yet solicitors’ agents have been appearing almost without challenge from then until now. i would submit that if that case didn’t strike down the right of audience claimed under the old CLSA 90, it won’t suddenly do so under LSA 2007.

    the district judge makes points about the undesirability of unqualified people having rights of audience. yet the new act includes (at 1(4)(b) of schedule 3) as exempt persons, those called to the bar. unless they have completed pupillage, they aren’t qualified and unless they have started pupillage, they aren’t insured. (the majority of those used as SA’s have been called, by the way, though certainly, like the advocate to whom he took exception, some are LPC graduates.)

    he is concerned that solicitors’ agents are potentially outside the control of any professional body – well, see above re most being called to the bar. and more effectively, the recourse is against those firms of litigation solicitors using the agents, who most surely are subject to professional control. if they get slapped with wasted costs orders as a result of the behaviour of those they employ, things will change so quickly that professional bodies’ disciplinary procedures will look like plate tectonics.

    in his penultimate paragraph, the district judge envisages this kind of work as suitable for trainees inter alia. as you will see from my post above, i respectfully disagree. how much better to have it done by those specialising in it. and how much cheaper – bear in mind that in virtually every case, costs are borne by the defendant (often by virtue of the mortage agreement). except in cases where fixed costs apply (eg charging orders) the unfortunate defendant would have to pay more for the dubious privilege of having their home taken from them by a trainee solicitor rather than a SA.

    finally, i submit that the artificial distinction made by the district judge between those employed by a solicitor (who, he says, can be disciplined by their firm) and self-employed persons (who can’t). the self-employed advocates at lpc would be dropped like hot bricks at the first whiff of unhappiness from solicitor clients. the pool of available labour is huge and the client holds the whip hand in a very competitive area of the market. presumably he has no such qualms about the difficulty of getting proper professional service from self-employed counsel rather than the employed bar.

    well i do have rather a bee in my bonnet, don’t i! but i would welcome argument on this – not least from the dj himself, who certainly wrote a thought-provoking article on a point i agree is important.

    • OK. My turn to back track. I don’t know of any specific instances involving LPC where an instructing solicitor wasn’t involved. That said, their website makes no mention of requiring instruction from a qualified litigator – but does say that their 2 litigation managers and the assistant litigation managers are qualified lawyers – and these are, I take it, the ones passing on instructions to the ‘advocates’. Hmm. I have, however, certainly come across people holding themselves out as advocates and solicitors’ agents who were certainly not directly instructed by a qualified litigator.

      On the DJ’s argument – you have dug further than I, but I would suggest a lot would turn on 1(7)(b)(ii) of Schedule 3. But further, the DJ’s point seems to be that provision of advocacy services alone does not amount to ‘assisting in the conduct of litigation’?

      Special pleading? You brought up cheapness and skills of both of advocacy and of specialised law. That was not part of the issue either in my post or the DJ’s argument

  4. nl – your post came on as i was drafting my second one (rather more carefully than the first, fortunately!).

    missing the point – i hope my perusal of the correct statute this time has addressed that. i am of course aware that mere guidelines don’t trump statute (you knew i know that!) but i was using them to shed light on statute – just the wrong statute! (d’oh)

    certainly didn’t miss the accountability point – i regard it as something of a chimera as i hope the second post made clear.

    special pleading? huh? be specific and i’ll give you my answer.

    it is certainly lpc’s case they are invariably instructed by a qualified litigator. i can’t comment on the reality of that, but as far as i know all the instructions they pass on to those they use (‘advocates’ seems to be a loaded word in this context) do indeed come from such. it may be you know different – fair enough. i know very well it isn’t your habit to make wild or unsubstantiated assertions. if you say it’s the case, i accept that – but it doesn’t chime with my experience.

    costs argument – the costs of attendance at court are what is saved. i don’t know whether that is actually passed on, but if not, that is surely an argument against the efficacy of the regulation in which the dj places such faith as the people doing it are precisely those who are qualified solicitors.

    accountability is addressed at greater length above.

    think that’s all of it. i bet there’s another post from you addressing my second. anyway, if so you will have the last word for now as bed beckons! a pleasure as always to exchange views with you.

  5. LPC are still in business post 2007 Act – and I note they’ve set up as a solicitor’s firm with the SRA and are listed on the law Society’s web site – presumably to get around the accountability issue.

    But SW, I’m not sure what relevance Solicitor Advocates have to this discussion. All solicitors have rights of audience – and need to obtain a further qualification to achieve Higher Rights.

    The “bog standard” county court advocacy the learned judge in the Gazette is talking about is by LPC/BVC grads and paralegals with no rights whatsoever.

    • just sayin – i may have confused matters by using SA as an abbreviation for solicitor’s agent – if so, apologies; none of my argument refers to solicitor advocates – i have no experience of them.

      just to be clear for both you and nl; it has always been lpc’s case as i understood it that the firm of solicitors giving the instruction are those with conduct of the litigation. lpc say they merely pass the instruction to the agent. this may or may not be a ‘convenient’ reading of the facts by lpc, but it is true that when an agent gets an instruction, it is the IS they go back to for details queries and further instructions as required. lpc have no role in that beyond an administrative one – they are certainly not litigating.

      i don’t know when a solicitor is deemed to be qualified or even when they join the law society (sorry – i’m just ignorant, not dismissive), but my reading of the 2007 act certainly makes me believe that those called to the bar are not people ‘with no rights whatsoever’. they are exempt persons under the act. there may be an eqivalent status for grads of the legal practice course – or not. i wouldn’t know.

      ok: ‘special pleading’ – i’m going for not guilty here. cost and ability are (i submit) relevant issues and i don’t see that it is a spurious line to introduce them whether or not they were brought up before. they are part of the evidence i bring and open to disputation. the real strawman here, as i tried to make clear above, is regulation.

      now here i may be exceeding my brief. the 2007 act looks like an unholy mess – a badly drafted compromise from people who would really like (maybe for excellent reasons) to have a good old fashioned closed shop on advocacy (and i like a closed shop myself) but know they can’t. hence its confused drafting.

      whether it is a good thing to have effectively unqualified people appearing in courts is another matter. sadly it is a side effect of low cost bulk solicitor work done by law factories.

      and finally – just sayin … simply wondered … nearly legal … are we related?

    • It is the ‘Solicitors Agent’ thing that concerns me. It is interesting that LPC are now registered as solicitors, but I’m still not at all clear that this makes the ‘advocate’ a solicitors agent in any meaningful sense. DJ Hill’s view is that to be an agent requires one to either be a solicitor or employed by a solicitor acting as agent for another solicitor. Solicitors Agent is not defined in the Act, but that would certainly be the time worn useage.
      Now in the LPC set up how does this work? Options:
      i) Solicitor A instructs Solicitor B (LPC) as agent and solicitor B hands the work on to the advocate, so B instructs the advocate – but then as you’ve made clear, the advocates aren’t employed by LPC, they are self employed. So how are they an agent? And who for
      ii) Solicitor A instructs advocate ‘directly’, with LPC merely as ‘facilitators’ – but the advocate is not employed by solicitor A, and I would be surprised if the advocate was personally directly instructed in the first instance (noting what you say about going back to solicitor A for further instruction)
      So, if I may channel DJ Hill, the argument is that in neither case is the ‘advocate’ properly a solicitors agent – that label is misleading.

      And to clarify, a legal practice course graduate has no independent rights of audience, unlike what you say about the BVC. If they are employed by a solicitor as paralegal, or trainee, things are different. Will the BVC grad status survive the mooted removal of the title barrister from non-pupillaged BVC grads?

      I don’t think quality is an issue here. What is at stake in the original article is a reading of the regs. Ability doesn’t enter into it as a determining issue. But then, of course, every self employed LPC ‘advocate’ has to start somewhere. they are not magically experienced from the get go. And of course, if your view was right absolutely anyone could turn up and act as ‘solicitors agent’ regardless of (lack of) qualification, experience, (non) employment by a litigator, membership of professional body or anything at all.

    • ok – now we are getting somewhere, nl. you have narrowed the issues and i have stopped relying on a repealed statute. this is good.

      maybe dj hill is worried (as you are) by whether ‘solr’s agent’ is a misleading term or not, but we are far beyond semantics. i would argue that unless there is an abstruse definition of which i am ignorant, an agent is one acting in the shoes of another. that is what those we are discussing do. mind you – you can say that of anyone who appears in court on behalf of another – and that doesn’t begin to address the issue of a legal right to do so or whether they do it well (which i still think is important both in terms of the skill exercised in representing their client and maintaining proper standards of professional/ethical behaviour).

      as far as i know, lpc was your scenario 2. i consider under that scenario the agents are directly instructed – they get a brief as counsel would, take further instructions (for what they are worth – not much in most cases, i fear) and they appear (or not if dj hill is sitting).

      (tiny point of detail, from my reading of the act, it is being called to the bar not ‘bvc grad status’ or the name barrister which exempts the person and underlies their right of audience. as it concerns the provision of legal services, you wouldn’t be holding yourself out as a barrister in any event unless you have completed pupillage and thus have proper rights of audience)

      you seem to be saying it comes down to whether they are employed by IS (good) or self-employed (bad). i don’t get that.
      how is there greater control per se over an employee than a self-employed person? both will cease to get work from IS if they don’t perform; both can be reported to a professional body if they are part of one; neither can if they aren’t; both are subject to the wrath of the court. that may be one reason the code of guidance made no distinction between people on the basis of employment/self-employment.

      and of course anyone called to the bar CAN indeed turn up ‘regardless of (lack of) qualification etc’. anyone employed by IS can turn up ‘regardless of (lack of) qualification’…

      surely the control is as i put it above: if solicitors send along people they shouldn’t, they will rightly be sanctioned whether those people are employees or not. they are liable for the actions of their agents.

    • I’m sorry to fall out, simply, but you are missing the point again. Lets take a simple example of agency to show why ‘solicitor’s agent’ is a term that is/ought to be reserved to solicitor/solicitor arrangements. Solicitor A instructs ‘advocate’ B to appears for them. Advocate B stuffs up royally and incompetently. A’s client, C, loses a lot of dosh and brings a professional negligence claim against A. A is very annoyed, because it was B that stuffed up and no fault of A’s. And A now also has a wasted costs order against them.

      What is A’s recourse? (Apart from not using B again, which is not really much of a recourse where money is at stake). B being a self employed BVC/LPC grad means that A is completely out of luck.

      Now if B was a solicitor or barrister, or employed by a solicitor, then B’s professional indemnity insurance is a target. A feels much happier. And C is more likely to get their money. In addition, B’s regulatory body might be interested in how royally B screwed up.

      You appear to suggest that an employee won’t be reported to a professional body if they are not part of one, but that isn’t the point. Their employer and supervisor most certainly can be and it is the employer’s indemnity insurance at stake. (And just how do you deal with that ‘supervised’ in 1(7)(b)(ii) of schedule 3 in your argument?)

      I’d also stick with my view that agency involves rather more than just providing advocacy services. At the least, it would mean dealing with the court about the hearing, filing docs if needed etc, none of which can be done by the ‘advocate’. But then we are back to the difference between ‘assisting in litigation’ and the bare provision of advocacy services. On that I defer to S’s comment below.

    • nl – just to be clear, i’m not (and couldn’t imagine) falling out with you. we disagree – and in particular i don’t accept i’m missing the point. still, we have put our cases and the disagreement (cordial) remains. shan’t labour it further.

    • As advocates in chambers? Most duty schemes are run by solicitors or those employed by the same organisation under the solicitor’s supervision. Should be OK.

    • last one, i promise! what about council officers doing duty scheme who may not be legally qualified? brent springs to mind providing duty advisers at willesden cc helping defend possession cases – a very positive step in my opinion. but do they necessarily have a right of audience in chambers?

    • Well I once knew a strikingly handsome duty court officer employed by an advice agency who operated without solicitor supervision. I’m slightly shocked to learn that this might make him a criminal.

      (NB – said advice agency have since employed solicitors. Said court officer’s hair has receded slightly but he remains strikingly handsome.)

  6. Very interesting point. So much so I’ve forced myself to go and have a look at the Act to try and work it out.

    We know from the above that a person is entitled to carry on a reserved legal activity, e.g. have rights of audience, if, inter alia they are an exempt person in relation to that activity: s.13(2)(b).

    A person is exempt for the purpose of exercising a right of audience before a court in relation to any proceedings if, inter alia:

    (a)the person is an individual whose work includes assisting in the conduct of litigation, (emphasis added)

    (b)the person is assisting in the conduct of litigation— (emphasis added)

    (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 being heard in chambers in the High Court or a county court and are not reserved family proceedings.

    (8)This sub-paragraph applies to—

    (a)any authorised person in relation to an activity which constitutes the conduct of litigation.

    The key question therefore is how do you define “conduct of litigation”? Because if you are not assisting in the conduct of litigation under instruction, and supervision (surely another point entirely; supervision means more than instructions does it not?), from an authorised person you do not have a right of audience.

    Sch.2, Para 4(1) defines the “conduct of litigation” 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).

    Now does the conduct of litigation include exercising a right of audience? I would say no for the reason that the Act has already defined “the right of audience” under Sch.2, para.3(1), namely:

    – the right to appear before and address a court, including the right to call and examine witnesses,

    and if the Act intended for conduct of litigation to include exercising the right of audience it would surely have said so. By having two separate definitions the Act seeks, in my opinion, to draw a distinction between the two; under the Act they are two separate, rather than interchangable, concepts.

    Therefore it cannot be said, under the Act, that you are assisting in the conduct of litigation if you are solely exercising a right of audience in the litigation.

    If that is the case unless you can show the court how you have otherwise assisted in the conduct of litigation then I would say you are not exempt and therefore, by seeking to exercise a right of audience, providing a reserved legal activity without authorisation to do so.

    Only my two cents, but I think it is a risky business and something that all those who work in this field should be aware of. If I am right, you are, after all, committing a criminal offence. It could certainly do with some clarification.

    I’m afraid that it is certainly an argument I will be running the next time I am defending a mortgage possession case.

    Finally, I think I read above that barristers who have been called, but not done pupillage, have a right of audience. This was not my understanding of the position. You need a practising certificate issued by the BSB to be authorised to have a right of audience. You will not get a practising certificate if you have not completed pupillage.

    • S – good work on the Act. I agree on the interpretation of ‘assisting in the conduct of litigation’. The rest follows.

      I have no idea about the called/practising position. I am but a solicitor. But Legal Practice Course graduates definitely don’t, without more.

    • Actually, having read back over the comments, Simply was relying on 1(4)(b) of Schedule 3 for those called to the bar being exempt. Unfortunately, 1(4)(b) only applies to the Attorney-General or Solicitor-General, which kind of limits its usefulness for those without pupillage:

      The person is exempt if the person is the Attorney General or the Solicitor General and—
      (a)the name of the person is on the roll kept by the Law Society under section 6 of the Solicitors Act 1974 (c. 47), or
      (b)the person has been called to the Bar by an Inn of Court.

    • ‘Finally, I think I read above that barristers who have been called, but not done pupillage, have a right of audience. This was not my understanding of the position. You need a practising certificate issued by the BSB to be authorised to have a right of audience. You will not get a practising certificate if you have not completed pupillage.’

      well yes – that was my understanding of it all, but the act does bother to make those called to the bar exempt. it doesn’t mention a practising certificate and we aren’t allowed to go behind legislation so… well how do you resolve that?

    • Um, Simply, it just makes Attorney Generals and Solicitor Generals exempt if they have been called to the bar – at least if you are relying on 1(4)(b) of Schedule 3.

  7. Can someone at Nearlylegal amend my post to add italics? I thought I knew how to do it, but clearly didn’t.

    • Done. You can try < em > < /em > next time (without the spaces). I don’t know if that will render correctly from the comment box, but it is worth a go.

  8. Oh dear, I know of at least 4 Court Desk schemes where there is no solicitor supervision at all and they are run by non-solicitors.

    Not really very good. Better than nothing though?

    • When I was a duty rep one District Judge would persistently refer to me as the defendant’s ‘solicitor’. After informing him three times that I had not acheived that status I gave up trying to correct him. If it saved him having to speak with the defendants directly, I don’t think he cared.

    • I always understood that solicitors = ‘right’ of audience

      non-solicitors = no ‘right’ but can have audience with the permission of the court.

      I just assumed that the duty schemes operated without solicitors had the permission of the court done as a kind of blanket thing.

    • Cait

      That is what is at issue in the earlier cases I mentioned. ALMO officers were seeking a general permission from the Court. They were refused as the court found it only had the power to grant right of audience on a case by case basis.

    • I guess so far it hasnt been tested ‘against’ a duty adviser …
      so presumably a landlords representative could challenge the duty advisers right to an audience – and then the court would have to decide whether to let them speak or not?

      (which as the duty advice scheme is there with the permission of the court – they’re unlikely to refuse)

      I can’t see this being a practical problem for duty schemes where they are there with the permission of the court and run by say a CAB or Shelter – unless their relationship with the court had broken down

      Has the ALMO issue actually come up in practice?

  9. As for non qualified lawyers working in Local Authority legal departments? They have devolved powers from the Borough Solicitor to be heard.

    I would be amazed if thse devolved powers applied to non qualified legal officers “assisting” tenants…

    By the way, “conducting litigation” is what solicitors do – not Barristers. Writing and signing letters on behalf of clients, taking witness statements, filing claims etc is what they mean by “conducting litigation” – I think this is separate to exercising rights of audience.

    A “solicitor’s agent” is another solicitor – say a solicitor in Lincoln needs to file papers in Brentford or attend a hearing. S/he finds a Brentford solicitor to go to court and do the business on their behalf.

    • Actually barristers _can_ in certain circumstances write and sign letters on behalf of clients and take witness statements. There’s been a change in the rules (as of 1 April this year) which means I can do rather more for my clients than I could – although in practice I’m reluctant to get involved in correspondence as a general rule (just because I am permitted to, doesn’t mean I should).

      What I and other barristers cannot do is appear on the court record. Solicitors can since they are officers of the court.

  10. and another thing:

    Called Barristers have higher rights of audience – they “just” are unable to exercise them until they are signed off in pupillage.

  11. Very interesting debate. I have placed a detailed analysis on this on http://www.gwslaw.co.uk/blog

    Although I can understand the logic of S’s comments that it “cannot be said, under the Act, that you are assisting in the conduct of litigation if you are solely exercising a right of audience in the litigation”, I think this is an artificial distinction. The wording in the Act is virtually identical to that found in s27 of the Courts and Legal Services Act 1990 and this distinction was never previously drawn by the courts.

    The key, in my view, is “supervision” which DJ Hill oddly does not even comment on.

    • Simon, you tease. You have only put up part 1 of your analysis and not touched on DJ Hill’s argument yet.

      On the distinction, it would be hard to see a costs draftsman as ‘solely’ exercising a right of audience, I would have thought.

      Supervision should also, surely, be a straightforward issue for costs draftsmen (or perhaps not?)

    • Simon Gibbs – I am not sure it is an artificial distinction. Isn’t it what our legal system has been based on for two centuries? The barrister exercises the right of audience and the solicitor conducts litigation? We all know what that used to mean and both the 1990 and the 2007 Act reflect that.

      In any event the Court of Appeal – inClarkson v Gilbert [2000] C.P. Rep. 58 – recognised the distinction under the old 1990 Act.

      In a case where the Court of Appeal were considering whether to exercise their discretion so as to allow a husband to exercise a right of audience in his wife’s claim, Lord Woolf made clear that there was a distinction between acting as an advocate and having conduct of the proceedings. He said even if they allowed the claimant’s appeal – which they did – the husband would not be allowed to conduct litigation without permission as being advocate was separate to that of conducting litigation, at [18].

      If such a distinction existed under the old 1990 Act and the new 07 Act draws such a distinction I think it is safe to say that such a distinction exists.

      I am, however, mainly speaking in relation to advocates who turn up to do mortgage possession claims or representatives from ALMOs, rather than costs draftsmen. They are self-employed, instructed the night before and other than turning up at court to argue for possession have no other involvement in the case. How can they be said to be assisting in the conduct of litigation?

      You are going to have to convince me why there is such a distinction, because I can’t see it.

  12. Clarkson v Gilbert was concerned with s27(2)(c) where the court granted rights of audience to an individual for a specific case. This is unusual for the reasons given in Clarkson. I was concerned with s27(2)(e) which is the rule that was previously accepted as allowing non-solicitor agents (costs draftsmen, advocates for mortgage claims, etc) to appear.

    In my view, the term “assisting in the conduct of the litigation” is to be contrasted with “conducting the litigation”. “Conducting the litigation” would mean running the litigation without input from the solicitor. This is what was being referred to paragraph 18 of Clarkson. A costs draftsmen should not normally (although often does to an extent) conduct the litigation without reference to the solicitor. When an advocate is instructed in relation to a possession claim they are assisting the solicitor (even to the extent the assistance is limited to advocacy). They are not “conducting” the litigation.

    • The advocate in such a possession case may be assisting the solicitor in the loosest sense, but I don’t think they can be held to be assisting in the conduct of litigation. I would be much more open to the suggestion that a costs draftsman would be assisting in the conduct of litigation. The costs draftsman would rarely, if ever, simply be instructed for the costs hearing. They would have been engaged in the costs process, most likely, from the drawing up of the bill and quite possibly any settlement discussion, points of dispute or replies, etc.. And, as you suggest in your part II post, supervision will in the vast majority of cases, be a factor.

      The convenient fiction that the draftsman is temporarily employed by the solicitor is noted, but there can be no doubt against whom a wasted costs order would be made, for instance. I’d be of the view that Schedule 3 1(7)(a) & (b) applied. I agree that employment per se by a solicitor per se is not a factor in 1(7). But supervision and engagement in the conduct of litigation is key. I don’t think that you and S are actually arguing about much – you also rely on the supervision and assisting in conduct of litigation clauses in the 2007 Act. There is, as DJ Hill’s piece suggests, a distinction between that and ‘advocacy’ tout court.

  13. My use of Clarkson was to demonstrate the distinction the courts drew between conducting litigation and exercising a right of audience, nothing else. I am aware it concerned the discretionary exemptions, not what we are dealing with. However, it just illustrates the fact that conducting litigation and advocacy mean two different things.

    As for your second paragraph, it is an interesting argument and I would concede it is arguable and may even be how the courts end up interpreting it. If I was LPC or Kearns it would be the argument I’d be running.

    However, I still don’t agree. We know what conducting litigation means: it means issuing proceedings, correspondence, filing defences at court, disclosure etc. It does not include advocacy. How can you then assist in the issuing of proceedings, filing a defence, doing the disclosure or whatever, by doing advocacy? You aren’t assisting the “conduct” of litigation at all. You are just carrying out another reserved activity: advocacy.

    You may be doing your solicitor a favour. You may end up winning the case. However, what you are doing is exercising a right of audience. What you are not doing assisting with the conduct of litigation.

  14. This evening I have begun my quest to discover once and for all whether I have rights of audience as a BVC Graduate pre-pupillage in front of a DJ. I have not been on the case for very long but thus far, its apparent that if its clarity I am looking for then perhaps this may be a never-ending search.

    In reply to SimplyWondered:

    “last one, i promise! what about council officers doing duty scheme who may not be legally qualified? brent springs to mind providing duty advisers at willesden cc helping defend possession cases – a very positive step in my opinion. but do they necessarily have a right of audience in chambers?”

    I believe this scenario could be covered by s.60A County Courts Act 1984, as amended by s.191 Legal Services Act 2007.

    • Lisa – I don’t think so – look at s.60A(2) – only counts when the proceedings are brought by the housing authority/management body. So wouldn’t cover LA staff doing duty desk defending except, just possibly, defending LA possessions. Which would be somewhat tricky, I’d think.

    • Oh and I think the answer to your quest is pretty (though not absolutely) certainly No. At least as an advocate…

  15. Ah, thank you and forgive my error with s60aA.

    In haste, I did not fully explain my quest. I understand that I do not have rights of audience per se; however I am entirely confused when it comes to the following:

    (i) In my current position as a BVC Graduate, I understand that I am precluded from carrying out s.12(1) reserved legal activity; but can I carry out s.12(3)(b) legal activity, specifically the provision of representation in connection with any matter concerning the application of the law or any form of resolution of legal disputes?
    Or does s.12(4) – “legal activity” does not include any activity of a judicial or quasi-judicial nature – disallow providing such representation, even were that representation is not conducted in open court?

    (ii) Though I do not fulfil the requirement of s.13(2)(a) in that I am not authorised to carry out reserved legal activity; do I fall within s.13(2)(b) as an exempt person based on either of the following:-

    Schedule 3, 1(4)(b) I have been called to the Bar, or

    Schedule 3, 1(7)(b)(c) and Schedule 3, 1(8)(a) (Acting as an advocate) I am assisting in the conduct of litigation under instruction and supervision from an authorised person.
    Another thought here is, can this actually be be complied with if I am acting in a self-employed capacity?

    I believe that LPC Law’s freelance advocates act as self-employed. I do wonder how this model works based on this legislation?

    • Lisa

      On your i), I frankly have no idea and, forgive me, I’m knackered and working on something else, so not going to look it up.

      On ii) you will see that there was hot debate about the LPC model above. My view, as set out above, is that it doesn’t work and LPC advocates/solicitor’s agents are open to challenge on their rights of audience. I don’t think describing someone as a solicitors agent makes them so if they are not a) a solicitor or b) employed by and under the direction of a solicitor. Others disagree. It would be interesting to hear of any challenges, although I suspect LPC would not appeal any county court decisions for fear of a devastating precedent.

  16. The answer to this issue can now be found in the decision of Kynaston v Carroll [2011] EWHC 2179. District Judge Hill, who was largely responsible for sparking off this issue, appears to have erred.

    If the hearing is “in chambers” – the court in Kynaston appearing to give the traditional meaning to this phrase (ie it does not mean “in private”) – an authorised person (eg a solicitor) can instruct a non-authorised person to attend that hearing (so long as they are supervising them).

    My longer analysis of this issue, which Kynaston appears to confirm, can be read here.

    • I’m not sure that is the answer. For one, this is an application for permission to appeal at which only one side was represented and, hence, not ordinarily citable (see Practice Direction on Citation). It is also, if I may say so, rather short on, well, analysis. Detail. Argument. Reasoning.

    • Simon,

      Noting J’s point, but I’m not sure how far this case gets us in any event. You say the unauthorised person must be under the supervision of the solicitor. As discussed at some length above, I don’t see how an LPC advocate could be said to be under the supervision of the solicitors with conduct of the matter (or how it could be said that they were supervised by LPC as a solicitors firm either). I note the phrase in Kynaston is ‘working under direction and control’ of an authorised person. I don’t that actually changes anything at all about DJ Hill’s argument. The key bit is s.13(2)(b) – assisting in litigation (so probably not just advocacy), under instruction and supervision of qualified person.

  17. It was the party who failed who was represented (admittedly a litigant in person). It can’t be argued that it would have made a difference if both parties had been represented (although might have made a difference if the appellant had been legally represented).

    The original decision was by a senior Costs Judge. A High Court judge refused permission to appeal on paper on the basis it was “wholly without merit”. On the further oral application for permission a second High Court judge again refused permission on the basis that “the arguments have no merit at all”.

    As against that you have the first instance decision of District Judge Hill (admittedly a well respected Regional Costs Judge). DJ Hill has never explained how in-house non-qualified fee earners are allowed to appear in court under the Legal Services Act 2007, which he believes, but not external agents. Either the Act permits both (because the hearings are “in chambers”) or it excludes both (because they are not).

    • In house non qualified fee earners can be heard because
      a) they act under the supervision of a solicitor; and
      b) assist in the conduct of litigation.

      If an LPC agent can show me how they satisfy the above then they can execise a right of audience. Until they can do that I can’t see how they can comply with the Act.

  18. What you say may well be true, but the Practice Direction is against you: [2001] 1 WLR 1001:
    “…
    6.1 A judgment falling into one of the categories referred to in paragraph 6.2 below may not in future be cited before any court unless it clearly indicates that it purports to establish a new principle or to extend the present law…
    6.2…
    Applications attended by one party only.
    Applications for permission to appeal.”

  19. Have been pondering a similar question and came across this fascinating thread.

    My position is that I have been called to the Bar, following completion of the BPTC, but have not done pupillage. I currently work as a volunteer for a legal advice centre under the direct supervision of solicitors. From next month, I will be a paid employee of the advice centre.

    I have been conducting litigation for a client (defending a possession claim) under supervision of solcitors. My question is whether I can address the court on her behalf. I assume that I don’t have rights of audience but that the court can give me permission to address them. Have I got this right?

  20. Hello Jane Z, I think you’re right. I’m not sure about your point re employment unless you refer to section 15 LSA but that would allow you rights of audience only if employed as a solicitor or barrister in your capacity as employee.

    OK people so how about an ALMO who issues proceedings for possession on behalf of a local authority but in the ALMOs name.

    Then the local authority write to the Court and following their written request to the Court the Court amends the Claimant’s name to ALMO “acting as agents for [LA](local authority)”.

    Solicitor from the local authority legal department (L) gets shirty with the Defendant’s (D’s) solicitor (“me” for short) who won’t correspond with the solicitor from said legal department (L). Me not accepting that L has rights to conduct litigation on behalf of ALMO, proceedings still being in name of said ALMO. Is the below right or am I going mad?

    ALMO has no rights to conduct proceedings. As above.

    ALMO can’t issue possession proceedings on behalf of LA in ALMOs own name.

    The proceedings shouldn’t be issued by anybody acting as agents for someone else, whether or not the papers say that that is said agent’s position. Seems dangerous, and almost to invite a contempt of court finding, said agent not being automatically entitled to carry out a reserved legal activity.

    ALMO is still the Claimant. (Although I can see the potential for the LA to argue it is now actually the Claimant and the Court has substituted the parties upon LA’s written request).

    [But really LA should have applied to Court to substitute parties ie LA becomes Claimant. CPR 19].

    If anyone cares enough I’m sure they’ll let me know if I’m wrong re any of the above.

    But is this right? By section 15 Legal Services Act L can conduct litigation for LA as L’s employer but not for ALMO.

    Assuming the actual Claimant is still the ALMO,

    – is the ALMO a member of the public or a section of the public to disallow L to automatically assume she can represent ALMO? Ie am I right to continue refusing to engage with L in these proceedings and going straight to ALMO with correspondence etc?

    – Or is there sufficient nexus between ALMO and LA for L to automatically assume rights of audience for ALMO?

    – and therefore is L on shaky grounds given the potential for criminal offences under LSA?

    I’ll find out what the Court has to say soon enough but I’d be interested to know what you think.

  21. Presumably, the ALMO is agent for the local authority and has a waiver from the law society to act for someone who’s not their employer.

    Thus, the ALMO lawyers can and do act – but the proceedings with be in the name of the “London Borough of Happiness” rather than “Happiness Homes”.

  22. Thanks Kris, but I am positive that the ALMO doesn’t have a waiver from the law society. That just is not the case at all. The ALMO cannot act, or even assume rights of audience at a hearing in chambers. The ALMO has to ask for permission at the beginning of the hearing to represent the Council. (See Lord Neuberger 2006, see Legal Services Act 2007) – reserved activities.

    I agree that the proceedings would have to be issued in the name of the local authority, my point really was whether or not the local authority solicitor could act for the ALMO in proceedings issued in the ALMO’s name, as the local authority solicitor in this case decided to do.

    I suspect not because the lawyer concerned is not an employee of the Claimant, employed in a capacity to act for the Claimant, the Claimant being ALMO. I say the ALMO are actually in the position of a member of the public for the purposes of s15 LSA. The LA don’t agree with my analysis.

  23. Hi Kris,

    There is no law society waiver for ALMOs so far as I am aware! Perhaps you could let me have chapter and verse though so I could check. I’ve never come across anything like that.

    When I was reading the thread earlier I noticed that there was some early reference to S60A County Courts Act 1984 which would allow ALMOs automatic rights of audience. This would be enacted by section 191 Legal Services Act 2007. Neither has ever been enacted and there is no commencement date so that couldn’t be what you’re referring to?

  24. Oh, wait a minute my apologies, there is a reference to a law soc waiver above September 2010.

    “just sayin
    27/09/2010 at 9:14 pm

    ALMOs are stuck in a couple of different ways:

    1. Unless they have a waiver from the Law Society, a solicitor employed in house by an ALMO can only act for their employers, eg Hackney Homes and not LB Hackney;…. ”

    But that is talking about a solicitor employed in house by an ALMO having a law society waiver to act for another employer. In Legal services Act terms the ALMO would have a waiver to allow employees employed in a capacity to conduct litigation for their ALMO employer to also conduct litigation for the local authority. The ALMO didn’t have this waiver and in fact I don’t think the ALMO concerned has any legally qualified staff.

    I have never come across one for that ALMO certianly. They do tend to rely on solicitors for the authority on more complex legal matters – it is just in chambers that I ever come across an ALMO officer.

    So if the council had such a waiver the council could have rep the ALMO in proceedings issued by the ALMO. But there is no such waiver there either.

  25. Hi Cait,

    As regards the ALMO officers representing in chambers, Lord Justice Neuberger has it – can’t automaticlaly do it, no automatic rights of audience.

    But perhaps the local authority and ALMO are close enough for the local authority solicitors to represent the ALMO under s 15 LSA.

    The Council never tried to argue that in the event, just caved in and changed the proceedings to the name of the the Local Authority – together with a fairly favourable adjournment on terms. I’m interested in your employment cases though – if you have the details etc etc….

  26. PS

    Cait I am blind! You sent a link re the case. It’s absolutely about my point, thank you very much. It appears that it never went higher. So thankfully so far as my arguments in the above case are concerned it looks as if it still isn’t a binding precedent.

Leave a Reply (We can't offer advice on individual issues)

This site uses Akismet to reduce spam. Learn how your comment data is processed.