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  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.