‘Solicitor’s agents’ yet again – no rights of audience?

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

And yet, no answer when asked:

Of course they should, simply as a matter of good practice…

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.

28 Comments

  1. I wonder why the same issues aren’t raised in relation to the various completely unqualified representatives who attend chambers on behalf of the tenants and mortgagors in possession hearings?

    Landlords and mortgagees’ representatives are usually, in my experience, aspiring lawyers who have law degrees, have completed the academic stage of their professional training and may even have been called to the bar. Some of them have been attending court for a long time and have acquired a lot of experience. Tenants and mortgagees’ representatives, especially those sent by the various charities, sometimes have no qualifications and little or no experience.

    The aspiring lawyers are gaining valuable experience and helping to make justice more affordable. I wonder who benefits from refusing to hear them in district judge’s chambers and why the same questions aren’t raised about tenants and mortgagors’ representatives?

    • Simon – if there are unqualified reps for tenant/mortgagor, who are not employed by solicitors or supervised on a duty scheme, exactly the same would apply. I don’t think this happens often, but if it does, it shouldn’t.

      However, the very large majority of duty schemes are run by and supervised by qualified practices (solicitors, law centres, etc). The exemptions in Schedule 3 would therefore apply – assisting in the conduct of litigation and supervised by a qualified person.

      This is not a moral issue, it is a technical and legal one.

    • Apologies for the lack of a declaration of interest, although I was making what I hoped was a mildly interesting point rather than lobbying. In truth, if we had to use counsel for possession matters then so would everyone else, so it’s a matter of limited consequence to our firm.

      Granted unqualified representation is technical and legal to a point, but I don’t accept that we shouldn’t look beyond that. As the judge will have a discretion regarding whom he or she hears, it seems to me, to a large extent, to be a question of how the judge’s discretion should be exercised which is perhaps less technical.
      Simplywondered, whilst in agreement with much of your post, I’d suggest that the fact that there is a system of pupillage / training contracts doesn’t mean that additional advocacy experience is not valuable.

      Further to your point about an unqualified claimant’s representative going back on a concession in conference once before the judge, almost every claimant’s advocate can point to instances where the defendant’s representative has made an agreement on behalf of their client or conceded a point only to go back on it when before the district judge, (I’ve either attended or supervised well over 10,000 possession hearings). I think that’s down to inexperience, not whether the advocate is qualified.

      I agree that that those representing parties should be able to do so properly. As someone who represents landlords (another declaration of interest) I suggest that the landlord, who is often unlikely to recover any of his or her costs, should be at liberty, with the advice of his or her solicitor, to decide whether to send an unqualified representative, saving hundreds of pounds, to a routine possession hearing, or to have counsel instructed for a more complex problem. Banks and building societies are big and ugly enough to decide for themselves if an unqualified representative will be sufficient. In most cases, the defendant will be (at least notionally) responsible for the costs and so this doesn’t only benefit the claimants.

      I agree, in a perfect world, both parties would have a highly-experienced advocate, but that would add a lot of cost. I take your point about assisting the judge, but in my experience, district judges are perfectly able to find their way around a possession matter and quite adept at deciding when to adjourn for something further.

      I still don’t see the benefit (to anyone) of declining to hear unqualified advocates in some cases. Where the matter is in chambers and the advocate is instructed by the solicitor on record, the unqualified advocate is caught only by the (illogical in my view) technical point that representing a party at a hearing is not assisting in the course of litigation. As it’s a down to the judge’s discretion it is rarely, if ever an issue, at least in possession hearings.

    • A right of audience granted by the court is, of course, on a case by case, hearing by hearing basis, so would mean a formal request for the court to exercise its discretion on each occasion.

      But simply did raise another rather important point, as well as the going back on concession one – it is that the ‘advocate’ may not have the experience, and certainly does not have the professional obligation, to raise a point of law that goes against them with the court when facing an unrepresented party. Solicitor and barristers do – as part of the duty to the court. The unqualified and unregulated don’t.

    • Well, the unqualified advocate might still argue that he or she has a right of audience under the Legal Services Act, he or she would only need to ask for leave to appear if the court enquired. Which is extremely rare; in reality, the same advocates appear before the same district judges week in week out, and the advocate’s status is well known.

      I think the real difficulty with the case I’m trying to make, as you point out, is the unqualified advocate’s lack of an obligation to draw the court’s attention to points against them. However, a lip has no such obligation, and if one sees an unqualified advocate as a half way house, maybe that compromise is acceptable if it leads to a significant reduction of costs.

      The argument is not that unqualified advocates are better, it is that they are better than appearing in person and much cheaper than qualified. Their quality generally is more about experience than qualification. But I concede the obligation point, as long as the obligation is observed.

    • On what basis would the advocate have LSA 2007 rights of audience? That seems to be the big problem following on from these cases. Clear findings that they are not assisting in litigation or supervised by those with conduct of the matter in their advocacy. And, of course, they are not employed by the practice carrying out litigation, so unlike a paralegal.

      I don’t see how that lack of obligation to the court can be an acceptable ‘half way house’ if the opponent is a LIP, to be honest. Leaves the court having to deal with someone who might know a bit of law, but has no duty to point out the salient bits, and someone else who also has no duty and knows no law. A recipe for wrong decisions.

    • The two decisions, if I remember rightly, were DJ decisions relating PI matters (happy to be corrected if I have misremembered). There are three limbs to the objection to unqualified advocates, in the light of the LSA. Firstly, the hearings were in public; well that’s not usually the case in possession claims. Secondly, there was a lack of supervision where the advocates are supplied by an agency; not the case if the unqualified advocate is instructed by the solicitors with conduct. Thirdly, advocacy is not assisting in the course of litigation. This last is a problem, granted, but it’s not binding and perhaps still arguable (and illogical in my view).

      I completely accept your point with reference to the obligation, however, if the choice is unqualified advocate or no advocate, the court is no worse off, and the parties may be better off with unqualified.

      All compromises have sharp edges, but given the enormous rise in court fees and ever increasing layers of complication in possession claims, it doesn’t seem unreasonable for there to be ways of minimising costs for the parties.

      If counsel had to be used even for routine possessions, it wouldn’t matter too much to mortgagees who are secured and going recover all their costs in any event, but private landlords would, in most cases I suspect, simply have to go without representation and I would question whether that’s helping anyone.

    • As my posts note, they are indeed county court decisions.

      All three elements of Sch 3 LSA 2007 need to be met. Granted possession usually in chambers, but that still leaves supervision and ‘assisting in litigation’.

      Pure advocacy – well, there is a very coherent argument as to why this is no ‘assisting with litigation’ – I’ve yet to see a counter argument.

      Supervision – that is tricky. You say different if not supplied by an agency, but if they are self employed, I struggle to see a difference. As per this case, ‘supervision is more than giving instructions’ (and of course if the advocate was employed by the qualified person with conduct, no exception is required).

      Whether this gets to a higher court is an interesting question. Which client and instructing solicitors are actually going to feel it important enough for themselves to appeal a ‘no rights of audience’ decision? Because the ‘advocates’ agencies can’t appeal – they have no standing, ironically enough. It would have to be a remarkable client to decide to take a stand on appeal on behalf of an unqualified, self employed ‘agent’.

    • Pure Advocacy

      DJ Peake in McShane v Lincoln, paragraph 5 of his judgment concludes that “conduct of litigation” and “exercise of a right of audience” are distinct activities.

      DJ Peake finds that “The fact that an advocate is purporting to exercise a right of audience does not necessarily make it one and the same thing as assisting in the conduct of litigation.” The district judge goes on to note that the court’s discretion to grant a right of audience but not a right to conduct litigation, is further evidence that the two are distinct. And finally, he notes that advocacy is not specifically referred to in the definition of “conduct of litigation” in schedule 2 of the act.

      As you say, an undeniably coherent position.

      However, the fact that an advocate is purporting to exercise a right of audience does not necessarily and by itself preclude advocacy from being within the definition of the conduct of litigation.

      The fact that a court can grant a right of audience could be seen simply as a catch all discretion and doesn’t necessarily mean, by itself, that parliament intended a distinction between conduct of litigation and advocacy.
      In the definition of “conduct of litigation” in Schedule 2 the wording suggests this should be seen as an exhaustive list. However, without reaching for a legal dictionary, I wonder if advocacy might come within the (b) “prosecution and defence of such proceedings.” It might further be argued that assisting in the course of litigation must include carrying out any function (including advocacy) which isn’t specifically excluded.

      All I’m saying is that it may be arguable.

      Supervision

      Even if self-employed, if the firm on record instructs an unqualified advocate, they are the agent of the firm on the record. In practical terms, the letter of instruction will include specific instructions about any particular issues that need to be dealt with, the advocate can directly contact the solicitor with conduct if unexpected issues arise at court, and crucially I think for this purpose, as they are the firm on record’s agent, if the court has any issues, they can come directly to the regulated entity responsible for the advocate. Tricky, as you say, but significant.
      Good point about the agencies’ interest in an appeal. However, my impression is that district judge’s in general are content with the status quo, for all it’s pros and cons, in possession claims at least. My money is on nothing changing in the foreseeable, and for what it’s worth, I think on balance that’s a good thing.

      Legal technicalities aside, of course the real question is whether the option to use unqualified advocates is desirable or not.

    • Conduct of litigation – ah but ‘rights of audience’ is separately defined at Sch.2, para.3(1), namely:

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

      So, clearly advocacy is distinct from conduct of litigation.

      Supervision – it is irrelevant whether the person instructed is called the ‘agent’ of the instructing firm. And instruction alone does not amount to supervision, as per above.

      Of course the court can’t ‘go to the regulated entity’ because they, or their client’s representative with rights of audience, is not at the hearing. By definition, the regulated entity has not attended. But in any event, that doesn’t amount to ‘supervision’.

      Nothing changing? Well, there will be more challenges to ‘agents’. And I know that various articles on this issue have been circulating around DJs. Whether a DJ would raise the issue of their own motion may be doubtful, but I’m not sure that you would morally want to be relying on the ignorance of LIPs for the continuance of ‘agents’.

      There may be arguments about the desirability or otherwise of this ‘option’ (personally, I think it is clearly open to abuse, precisely because it is outside regulation and there are exactly zero criteria for entrance or for claiming to be an ‘agent’/advocate. The LSB may be keen on that kind of ‘market’, but it looks like a recipe for people being ripped off and dumped in it, as with much of the ‘legal services’ market. See here and here). But, if it isn’t actually a valid option at law, which appears to be the case, that isn’t an argument worth having – at least not here. It is something to lobby about, maybe.

    • No, I accept the difficulty about the separate definition of rights of audience. And on a purely technical level, that is a tricky point to get past. However, the practice is widely tolerated, and the underlying question is, should it be?

      Not sure I agree with your point about supervision. If I am a regulated entity and on the record in the particular case, then surely as my agent, if the court has any issues with the advocate, then we are the responsible firm. The supervision issue raised e.g. by DJ Peake, it seems to me, was aimed at advocates instructed by agencies, rather than by the solicisitors with actual conduct of the matter. There is I think an important distinction.

      I don’t think I was relying on the ignorance of LIPS, the point was that if a solicitor or barrister was not an option, then the court would be no worse off with an advocate who did not refer to adverse points than if there was a LIP. I think it was Simply who raised the issue about the lack of such an obligation.

      The LSB’s apparent approach was in the back of my mind when I posted here.

      Of course the unregulated market is open to abuse, but the cost of access to justice is also a major problem. I think the use of unqualified advocates could be much less risky than for example, unqualified and un regulated “eviction specialists.” Declaration of Interest – we work in this area. The reason I say that is because I can advise a client whether it is appropriate to use a very much cheaper unqualified advocate in a routine matter, or whether counsel is required. A client doesn’t have the benefit of advice when choosing who to advise them.

      We have dealt with cases previously dealt with by unqualified and unregulated “eviction specialists” where a very great deal of time and money (not to mention stress) has been wasted quite unnecessarily because an unqualified and unregulated “eviction specialist” didn’t have sufficient expertise. I wonder if there are cases of unregulated advocates doing much harm. I can’t recall anything too serious in the many thousands of such cases I’ve been involved with.

      I know you don’t agree, but it seems to me that the only real difficulty (a tricky one admittedly) is the definition of rights of audience.

      I agree about the unqualified and unregulated market generally, and as many such entities are not cheap, it’s hard to see the point of them. I’m certainly not going to lobby for them and I never had that in mind when posting. But, on the very specific issue of unqualified advocates in possession matters, I think there may be a case for an exception.

      And whilst I take your point about whether it’s a valid option at law, I would make the point that it in reality what actually happens every day at court that we are discussing, whether it’s valid or not.

    • I’m not sure that there is any difference per se between an agent used by a regulated firm directly or through an agency. In both instances, the ‘agent’ is self employed. I do agree that supervision is a question of fact and that it may, in some circumstances, be possible for the ‘supervision’ criteria to be satisfied – but of course that depends on there being ‘conduct of the litigation’.

      The real difficulty with the ‘unregulated’ sector – and that includes ‘agents’ – is that there is no way to distinguish the able from the appalling (and no recourse, of course). There is no qualification threshold, or other standard. Unless the sector becomes regulated, and you get, in effect, ‘authorised advocates’, then there is no practical way to allow for ‘good’ agents as opposed to ‘bad’ legal services. You allow one, you allow the other.

      The LSB position seems to be ‘the market will sort it out’ – that may or may not eventually be the case. Personally I doubt it – these are distress purchases much of the time. But there is plenty of time for untold damage to be done to consumers/clients in the meantime.

    • The distinction I had in mind is that the principal is, all things being equal, responsible for it’s agent. It seems to me that the court can get to the regulated entity with conduct of the litigation by that route, if not the individual advocate. At least someone is responsible. That’s rather more difficult if the advocate is instructed by an agency.

      Completely in agreement about the difficulties of having an unregulated sector. I am only attempting to argue for an exception for advocates supervised by the firm with conduct, and then only in possession matters (though others may make a wider case).

      I also agree about the unregulated market. The market is a great thing, but to work properly, the decision makers must make an informed choice. That’s not always possible in law. Hence others must set minimum standards to protect the client.

      Like many firms, I expect, we not infrequently have to solve problems caused by unregulated providers who are simply not up to scratch. However, due to the presence of the LSB et al, I doubt this is going to improve any time soon.

    • A small declaration of interest on your part would not have gone amiss, either.

      “We retain our own advocates for court agency who will have at the very least, completed the academic stage of their training to become solicitors and barristers.”

    • giles’ point:

      ‘Conduct of litigation – ah but ‘rights of audience’ is separately defined at Sch.2, para.3(1), namely:

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

      So, clearly advocacy is distinct from conduct of litigation.’

      can also be approached from another direction. barristers can’t (except in the special circumstance of being direct access qualified and trained and authorised to conduct litigation) conduct litigation – so advocacy can’t be part of conducting litigation.

      on the point of those landlord specialist firms – as counsel usually doing tenant-side work i am always happy to see them. they get everything wrong and in a good percentage of cases i handle get struck out for procedural incompetence. being less flippant, i am concerned that they offer a poor service to landlords and the representatives they use aren’t competent to assist the court, can’t tell a bad point from a good and waste court time. i think the impact of using such firms is greater in possession claims by landlords than by mortgagees as the former are much more procedurally complex and in mortgage possessions you can get away with a narrower body of precedent. personally i wouldn’t let such people anywhere near a possession claim for a landlord. as one dj said to an embarassed (and embarassing he was so poor) opponent ‘landlord and tenant is not an area of law to cut your teeth on’.

  2. as nl will remember, i have posted here previously arguing some (note ‘some’) value in having agents. in a mortgage case where the mortgagee will have contractual costs, the using of an agent is some hundreds of pounds cheaper than using even very junior counsel. it remains the case that litigation is bloody expensive and for those in the difficult position of being unable to pay a mortgage any saving must be helpful.

    i don’t accept the argument that ‘the aspiring lawyers are gaining valuable experience’ – there is a system of pupillage which aims to create the structure in which barristers gain experience. those representing clients should be sufficiently qualified to a) represent their client properly and b) deal fairly with the other party.
    the second point becomes even more crucial when the other party is unrepresented as mortgagors usually are. i found myself representing a mortgagor the other day against an agent. in our pre-hearing discussion i raised a point of law; it was agreed. in the hearing i stated that point and lo and behold the agent disputed it was good as a matter of law. i suppose the same could happen with less good counsel, but you’d hope not. and djs are, by their nature, generalists. if they have only an agent in a hearing telling them x,y and z with nobody for the other side to correct any errors (of which one has many with agents) or the agent (who is not bound by the code of conduct) fails to make dj aware of a point from case law against their own argument, the onus is then on dj to ensure fairness. you may say dj should be able to do so but it isn’t always the case. one of the key values of having proper counsel is against the unrepresented litigant when they should strive to ensure fairness.

    still doesn’t resolve just how expensive it is to litigate, and as i say it’s the mortgagor who pays; if they didn’t, then the costs would go onto the mortgage company who would recover from all their clients, the bulk of whom will never default.

  3. as an unqualified but experienced caseworker who regularly advocates on behalf of tenants in court, and whose presence and standing to do so generally goes unquestioned by both opponents and judiciary, I don’t think I’d have the gall to raise a query or objection to an opposing advocate’s locus to appear. I think a lot of DJ’s would see this as trying to ‘score points’ and would be counter-productive, even if there may be a legal point here. So unusually I find myself more in agreement with Mr Vollans than Mr Peaker on this occasion. But I do admire both for the eloquence and courtesy of their debate!

  4. I remember as an articled clerk in the 1970s that my principal would be contacted by solicitors for a person to appear at hearings before the registrar in our local County Court at Woolwich and I would regularly appear. The matters were heard in chambers.
    This is routinely done by solicitors seeking a local solicitor to act as agent when the distance of the solicitor to the court made it unreasonable.
    A solicitor at common law had a right of audience in chambers through their clerk.
    s 27(2)(c) of the Courts and Legal Services Act 1990 (in similar terms to paragraph 17 Schedule 3 Legal Services Act) was stated to be for the purpose of preserving that right. (This was a case involving Dr. Pelling.)
    Re H-S (minors) [1998] Lexis Citation 3965 Court of Appeal
    LORD BINGHAM CJ
    It appears to me that the plain object of s 27(2)(e) is to preserve the traditional right of solicitors’ managing clerks to conduct proceedings in chambers on behalf of the solicitors who employ them. Such managing clerks are traditionally men and women of great experience, often members of the Institute of Legal Executives. They can be relied on to observe the same principles of detachment, objectivity and professional duty as a qualified solicitor or barrister. The situation disclosed in this case seems to me to be a far cry from that. Dr Pelling is not in any ordinary sense a managing clerk; he lacks qualifications and experience. Mr Bance plainly is a qualified litigator within the meaning of the Act, but he conducts a practice of an unusual nature. It would certainly appear that in no ordinary sense is Dr Pelling acting under instructions given by Mr Bance. It is plainly in large measure his own advice that clients value.
    I think that Lord Bingham was perhaps wrong to call it a right of the managing clerk as opposed to a right of the solicitor employing them.
    On your construction all agency work would have to be done by a fully qualified solicitor/counsel even though the work might merely be an oral examination of a judgment debtor.

    • No, any paralegal employed by a solicitor has the right of audience. And it is only another solicitor’s practice that can act as agent for another solicitor (so thus also the employed paralegals of that firm too).

  5. Legally, I am yet to hear an argument as to why conducting litigation means exercising a right of audience.

    On the wider policy point, the point that has been raised here and many times before is a reason for why you should not have un-regulated agents: they are not insured and do not have any regulatory requirements. I did a hearing once in which the other side was represented by an agent. He told me something that he thought he had to tell me but I am pretty sure, by his client’s reaction, that they didn’t want him to tell me. I think he actually thought he had to tell me when, of course, without his client’s permission he couldn’t. Any barrister or solicitor would have withdrawn and warned the client of the consequences of not disclosing the document, but none would have breached client confidentiality.

    Of course the converse I am sure also happens, representing clients and not raising points that are damaging to the LL or mortgagees case.

    Ethics are important not something that we can get rid of because justice is too expensive.

  6. I think the conducting of litigation and the exercising a right of audience are clearly distinct but the question is
    whether the awarding of one right leads to the implied awarding of the other. Particularly if some technically
    unqualified advocates are making use of both rights regularly and are not seeking express consent from the court and still fall outside of the exemptions.

    Are these people impliedly exempt from both because a) district judge JOE BLOGS has given a right of audience in one case and therefore it is implied that the advocate therefore has the right to conduct litigation in the same case and or

    b) because the advocate appears so many times before the same courts, both the right of audience and the right to conduct litigation in any particular case is assumed, and the court perpetuates this assumption by not saying a thing? – would this imply a right to litigate and be heard?. Clearly this would affect both the CPS and the criminal
    courts if the court was looking at an exceptional case of prosecuting an unqualified advocate for the offence.

    Lord Justice Brooke at Para. 65 of Paragon Finance Plc -v- Noueiri [2001] EWCA Civ 1402 considers the reasons for providing the two rights under the Courts and Legal Services Act 1990 to take similar considerations. At para. 75 of Noueiri it appears to show why the court was concerned with the unqualified advocate in that case, in particular that he was not even able to comprehend where the exhaustive appeals process of the domestic courts ended before he was able to petition the ECrtHR.

    Now, even a fresh graduate with a qualifying law degree (that is, those that have a QLD having undertook the training in tort, criminal, eu, public law and human rights) can see where his errors were. Of course, time has gone on since the Woolf guidance of 1997 and also the HRA was enacted and there have been numerous
    ‘reforms’ (aka cuts) to civil and criminal legal aid – but surely if those concerned with the law and qualified
    practitioners are finding it difficult to come to complete certainty with this issue then surely the rules need
    further clarification – the unqualified (technically or not) advocate ought to be able to know with enough degree
    of certainty whether what he or she is doing is lawful and or criminal.

  7. ‘…..Wilkie is now at home in Scotland, though he has left his Ego at the court, as it could not fit back out through the door.’

    HAHA

    Some interesting points Giles. Whilst the lay rep was acting ‘as of right’ under an enactment, the
    ‘solicitors agent’ had no exemption and so could not be heard unless on the roll or instructed AND
    supervised by a qualified supervisor solicitor.

    I suppose the protection though is that the Order only permits the lay rep to be heard on the small
    claims track but no further – an appeal from a DJ to a CJ would be out of bounds, unless of course
    the appeal court used it’s inherent powers or statutory powers to permit the same lay rep to be heard further if
    it didn’t go right.

    I’d be interested to know (out of theoretical purposes) how a criminal charge would be laid (if ever), particularly
    when the AR and MR meet each other at point in time. What would happen in the case where an unqualified
    person litigates and is heard – but permission to be heard further or litigate on the case further is only given
    AFTER some form of litigation has already been done and an audience received. Would the AR and MR be complete even if a DJ gave permission afterwards (can permission be retrospective?) or could a prosecution
    even be brought when permission is given from point onwards?.

    I’m not saying that would ever happen, but interesting for the mooters non the less.

    • See s.14 LSA 2007 – looks somewhat like strict liability. No MR. But a defence that did not know and could not reasonably be expected to know was committing offence. Offence of pretending to be entitled at s.17 is different.

      I’d agree permission not retrospective, though a prosecution in the circumstances unlikely.

      By the way, there is court of appeal precedent that an appeal of a small claims case is still a small claim.

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