Following on from this post and then this one, there are further developments on the issue of rights of audience for ‘solicitors agents’ or ‘advocates’ – those who turn up to represent a party despite not being qualified to provide advocacy on their own behalf – and while not definitive (county court decisions only), it is a further example of the arguments for rights of audience for the agents/advocates failing badly.
What is more, there is updated guidance from the Bar Council to ‘unregistered barristers acting as solicitor’s agents’ (ie, barristers who have been called, even passed the BPTC, but do not have pupillage or have qualified). The effect of which is that “many individuals currently exercising rights of audience in reliance on this provision (Sch 3 Legal Services Act 2007) are at risk of contravening the Act”. Which is a potentially criminal offence.
What prompted this updated guidance was a Manchester County Court decision in Ellis v Larson, September 2016. As with McShane v Lincoln, this was a ‘stage 3 hearing’ in a portal personal injury claim. The initial issue was similarly whether this was a hearing in public or in chambers/private, and it was decided that it was, such that the claimant’s ‘solicitor’s agent’ had no rights of audience in any event. However the judgment also went though the other conditions for a right of audience under paragraph 17 Schedule 3 Legal Services Act
“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…
(ii) under the supervision of that individual, and
(c) the proceedings are not reserved family proceedings and are being heard in chambers.”
In this case, the ‘agent’ was not assisting in the conduct of litigation:
In my view, at the hearing, the person exercising the rights of audience, the advocate is not involved in the conduct of the litigation generally, or assisting it. One has to make the point that it does not say “in the conduct of this litigation”; it says “in the conduct of litigation”. However, in my view, what I am saying is that the advocate at the hearing is not involved in the conduct, or assisting in the conduct, of litigation generally, or indeed in the particular litigation in which he is appearing. The fact that he may be involved in negotiations or costs does not, in my view, affect the basic position that he is representing a party at a hearing. These are, in my view, aspects of the representation at the hearing, not assisting in the conduct of litigation generally.
The agent was not under supervision of the qualified person with conduct of the matter:
In my view, supervision must, as I have said, be by the person who gives the instructions and who is authorised in respect of the activity. The defendant says that Mr Sisto was not supervised by that individual at court and submits that supervision must mean more than giving instructions because the section itself refers to instructions, so there must be more to it than that. The defendant says that Mr Sisto was not supervised. The claimant says that Mr Sisto was in contact with the authorised individual with regard to issues and negotiations and costs. There is, I must say, no evidence before the court that in this particular case – and it is this particular case that we are dealing with – that that occurred and that was the case here. Therefore, I am not satisfied that in this case therefore, due to that lack of evidence, that that was the case.
However, in any event, in my view the actions that the claimant’s counsel today refers to, such as having to get instructions on questions of costs and offers and the like, that is what that is. It is getting instructions. It is not supervision of the conduct of the work being done – i.e. the advocacy. Therefore, I am not satisfied that the claimant’s representative satisfies the test in respect of rights of audience.
Now, while mortgage possession claims and rent arrears possession proceedings are usually ‘in private/chambers’, that is not, by itself, enough to enable the ‘agent/advocate’ to have standing, as all of (a), (b) and (c) must be satisfied for any right of audience.
While there is no higher court decision on this point, this was an argued case. In my view, in any mortgage possession or tenant possession claim where an ‘agent/advocate’ turns up for the claimant, their right of audience should be challenged, vigorously.
This will particularly be a problem for those ‘legal services’ setups who do eviction work and ‘instruct’ advocates, as they cannot even claim to be a qualified person giving instructions. When I raised this with one of them, they said
@nearlylegal Old arguments helping rich barristers. If lawyers provided better value for money there might be no need for LegalMentor
— LegalMentorCoUK (@legalmentorcouk) January 27, 2017
And yet, no answer when asked:
@legalmentorcouk By the way, should you not be informing your clients that 'advocates' may be subject to legal challenge?
— Nearly Legal (@nearlylegal) January 27, 2017
Of course they should, simply as a matter of good practice…