‘Solicitor’s agents’ and rights of audience again

We had a look at this issue many years ago, and now, with thanks to Gordon Exall at Civil Litigation Brief, there is information on a county court case on the point. This is of significance, and potential use, as the appearance of ‘solicitor’s agents’ for advocacy in mortgage possession claims and in private possession claims is widespread – often used by ‘legal services’ providers who are themselves unqualified.

The key question is whether such a person, with no rights of audience based upon their own qualification, could find rights of audience in Legal Services Act 2007  Schedule 3 1(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.

The first part of the judgment in McShane -v- Lincoln (Birkenhead County Court 28th June 2016) concerned whether a ‘stage 3 hearing’ in a portal personal injury claim was heard in chambers or in open court as a trial. The District Judge decided that it was not in chambers, as it was a contested hearing to finally determine the claim. While this meant the ‘solicitor’s agent’ had no right of audience in that case, the judgment goes on to consider two further points which are of relevance for housing matters.

Is the advocate/’solicitor’s agent’ assisting in the conduct of litigation?

The court found that they were not. Advocacy was not conduct of litigation, as exercising a right of audience is a distinct reserved activity to conducting litigation.

Is the advocate/’solicitor’s agent’ supervised by an authorised litigator?

Various of the businesses or agencies through which advocates/’solicitor’s agents’ are provided have solicitors as managers. However, this did not impress the District Judge.

Supervision must be distinguished from mere instruction. It involves close involvement such as is involved in the case of a legal executive or paralegal who has conduct of a case under the supervision of a principal solicitor. There is no such relationship in existence as between a solicitor’s agent and his agency or the solicitor who has instructed the agency.

Also LSA 2007 Schedule 3 para 1(7)(b) require that the supervision must be provided by the person who is giving instructions. Therefore any supervision by the manager of the agency would not suffice since she/he is not the same individual as the solicitor who is providing the instructions.

The agency is not the one charged with the conduct of the litigation, unlike the situation in Kynaston v Carroll [2011] EWHC 2179 (QB).

The upshot being that the advocate/solicitor’s agent did not fall within any of the exemptions and had no rights of audience, even at hearings in chambers.

This forms a clear basis for arguing against any appearance by advocate/solicitor’s agent on possession cases – or indeed generally. While only a county court decision, the reasoning is clear.

It is, of course, a criminal offence under LSA 2007 s.14 for anyone to carry out a reserved activity, including exercise of rights of audience, if they are not entitled.

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 and tagged , .

13 Comments

  1. Only a matter of time before the LSB stamps out this kind of technical, elitist nonsense, I fear.
    Interesting (and entirely correct) judgment in my view.

  2. Ooh. I might be giving this a whirl sometime shortly.

    Although it’ll put a good few BPTC grads on the breadline.

  3. I can remember this arguement being raised a few years ago by District Judge Hill at Leeds County Court. I have always wondered how this arguement sits with social housing who usually send income officers along to represent them when seeking possession who have no legal qualifications.

    Most social housing organisations do not have a legal department which came to me as a shock when I discovered it as I had always assumed they had unlike most most local authorities who do have a legal department although in reading some of the cases on Nearly legal one does wonder if they are fit for purpose.

    • There is usually a general permission for social landlord officers on possession cases – the court can give such a permission. I have seen those officers then come to grief when they turned up to a hearing on a disrepair claim.

    • The County Courts Act gives local authority officers a right of audience (not ALMOs). As for employees of housing associations, they are employees of a company (most of the time) and can be granted rights of audience by the court as like any other company. They are meant to comply with the practice directions to CPR 39, but I imagine rarely do.

  4. On a recent mortgage possession day at our county court, the claimants in half the list were represented by a single solicitor’s agent Others were represented by other agents.. One of the defendants was represented by an unqualified debt adviser, another defendant was represented by an unqualified CAB caseworker. The only solicitor in the building was on the duty desk.

    Should the DDJ have chucked us all out, adjourned all the cases and made no progress whatsoever for the whole day? I don’t think the answer can be yes.

    • Duty desks usually have general approval by the court. I’m guessing that the clients of the debt advisor and CAB worker were present, so being assisted, not represented. If the claimants want to send along people with no rights of audience to represent them, that is their problem.

      ‘It is just the way we usually do things’ is not an answer.

  5. The only exemptions which I were aware of in terms of rights of audience are those of small claims
    where the client attends with the ‘lay representative’. The enabling power being ss.11 and 120 of the Courts
    and Legal Services Act 1990:-

    ‘Lay Representatives (Rights of Audience) Order 1999/1225

    (1) Subject to paragraph (2), any person may exercise rights of audience in proceedings dealt with as a small claim in accordance with rules of court.

    (2) A lay representative may not exercise any right of audience:-

    (a) where his client does not attend the hearing;

    (b) at any stage after judgment; or

    (c) on any appeal brought against any decision made by the district judge in the proceedings.’

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  7. I wrote an aritcle on this for JHL 6 years ago after lengthy discussion on here and have been trying to run it ever since, but don’t get much of an opportunity these days.

    My reading of the law was exactly as was found in this case. Every time I have raised the point though either the court has adjourned and the next time a solicitor/barrister has turned up or given me what I wanted so that there was no basis to appeal.

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