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.