[Updated 8 August 2022 to correct re LPC being on the record as party’s solicitor and significance of this.]
This is an issue that has come up here a few times (eg this post and this post) – the rights of audience of people who do not have a right of audience in their own right, but attend hearings to carry out advocacy. Now we have a County Court detailed appeal decision on the issue (not binding, but as an appeal to a circuit judge, of persuasive value). [Update – but this judgment is perhaps of very limited broader application on a key issue, whether a para 1(8) authorised person has to have conduct of the litigation.]
Halborg v. Apple (UK) Ltd & O2 Holdings Ltd County Court at Central London. HHJ Backhouse, 3 May 2022.
(Yes, this is the same Scott Halborg we’ve previously encountered, here apparently claiming about an issue with his iPhone). At the first instance hearing, Apple were represented by a ‘solicitor’s agent’ instructed by LPC Law Ltd. LPC’s business is the provision of such advocates for other parties. LPC were not Apple’s solicitor However, somewhat unusually, LPC – via their trading name of SCS Law, were on the record as Apple’s solicitor in the case). Mr Halborg challenged the agent’s right of audience. The DDJ found against him, but granted permission to appeal.
The issue was whether the ‘agent’ fell under paragraph 1(7) of Schedule 3 Legal Services Act 2007
“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.”
Sub para (8) is “… any authorised person in relation to an activity which constitutes the conduct of litigation…”.
In a detailed judgment, HHJ Backhouse held:
“in chambers” meant the kind of hearing that under the County Court Rules 1981 would have been heard in chambers (rather than in open court), even though the term was not used in the CPR from 1998 onwards. This would usually include mortgage possession hearings, stays of eviction, and most (though not all) kinds of application hearings.
On ‘assisting the conduct of litigation’, this was a sufficiently broad term to include advocacy. LPC had said in a witness statement that the agent had also carried out non-advocacy work (conferences and filing of documents and pleadings) but there was not sufficient detail of that. Given the finding that ‘advocacy’ could be ‘conducting litigation’, there was no need to address how such non-advocacy work would relate to a hearing.
On ‘under the supervision’ of an authorised person, it was not in dispute that the agent was acting under the instructions of a solicitor at LPC Law. The evidence from LPC was that there was a system of supervision that allowed it to oversee and direct its advocates. It did not require constant supervision by an authorised person so long as the system would refer any matter which did require a solicitor’s attention to the solicitors.
The agent therefore did have rights of audience at the application hearing in question.
Comment
Apparently, the Court of Appeal declined to hear a leapfrog appeal in this case as the issue was by then academic. That is a pity in terms of bringing certainty to this vexed area. But this judgment will doubtless be the one relied upon in any question over rights of audience, at least where the ‘agent’ is an employee of a firm with practising solicitors and there is supervision of them.
[Update/correction] It is important to note that – unusually – LPC, via their trading name of SCS Law – were the solicitors on record for Apple in the case. The upshot is that the ‘agent’ was directly instructed by the solicitors on the record (and, given a previous Employment Tribunal case, was effectively their employee. As such, I’m not sure that this judgment has broader impact. Could a solicitor who is acting send along a paralegal to a chambers hearing to represent the client? Yes, I don’t think anyone (prior to this!) has disputed that the paralegal would have rights of audience in that situation.
I remain uneasy – both on whether advocacy pure and simple amounts to the conduct of litigation, despite the finding here, and on whether a solicitor who has nothing to do with the litigation and is not instructed upon it save for providing the agent can be said to be a sub para (8) individual (assuming that there is no other solicitor instructed, as is usually the case). This case does not decide that latter issue.
I’ve had such agents turn up for otherwise unrepresented opponents for open court hearings where clearly their ‘advocates’ firm should not have accepted instructions in the first place, suggesting attention is not always paid to when instructions should or can be taken on.
Moreover, such agents seem to be used quite often on tenancy possession hearings which were ‘private’ as per the old version of PD 39, but, as HHJ Backhouse points out, ‘in private’ and ‘in chambers’ are not the same thing. PD 39 now says hearings are public unless there is a good reason for the court to decide to hear in private. So, the issue of whether a matter is ‘in chambers’ or not is very far from clear – and with it any rights of audience for ‘agents’ on such matters.
As HHJ Backhouse acknowledges
The judgments of DDJ Balchin and of DJ Peake convey a sense of disquiet about the practice of solicitor’s agents appearing as advocates. I am aware that some, perhaps many, practitioners and judges share that unease. The 2007 Act and its predecessor were designed to tightly circumscribe rights of audience.
And she concludes
I consider that judges in the County Court would benefit from more authoritative guidance from the senior courts on the question with which I have been concerned in this appeal.
With no disrespect to the excellent HHJ Backhouse, indeed yes.
“I remain uneasy – both on whether advocacy pure and simple amounts to the conduct of litigation” – but then “Given the finding that ‘advocacy’ could be ‘conducting litigation’,”….I’m confused
I’m not sure about that part of the decision.
Informative post, so thank you. But I think it’s high time that the situation here was put to bed, once and for all. When I was an agent I was fortunate that nobody challenged my RoA, with one notable exception (he was a LIP and failed miserably in his low blow), but it is nice to have some vindication nonetheless. From speaking to people I have observed that this is, very oddly, a regional phenomenon; in certain courts there seems to be issue taken with RoA and in other Courts there simply is not. The one attempt against me met with very short shrift from the judge, whilst friends of mine are quite frequently refused RoA in certain courts (Reading is notorious I am told). Well, now we have some degree of certainty as to the position.
The truth is that LPC Law (and other agencies) provides a good service at a good price, they and their agents are insured (with higher levels of insurance coverage than many barristers). The SRA are empowered to make orders prohibiting a particular, named individual from working for a firm if there are grounds for so doing and it is also just unrealistic to imagine that BPTC graduates who don’t yet have pupillage will not wish to make use of their advocacy skills in some way. The alternative would be everybody offering their services as a paid McKenzie friend or flooding the Tribunals, all while the cost of volume County Court litigation skyrocketed.
Without agents there would be some access to justice issues arguably. On a £160 parking small claim nobody is ever going to use counsel (when PPCs do do this it is because some important point of law is at stake and they want to ensure that the judgment goes their way by using experienced counsel), you can instruct an agent for less than £160 and it makes bringing those claims viable. Many of us may dislike parking companies, but Parkingeye v Beavis suggests that they are entitled to bring these claims and entitled to their damages (all else being equal), so on that basis it is surely a good thing that they can bring them in a cost effective way?
As for agents’ very existence minimising opportunities at the Bar, I’m not sure I believe that it is so simple. If it were not for agents then probably a lot of the work would be soaked up by in-house paralegals (as the post seems to suggest). It is true that agents do an incredible number of hearings compared to counsel/solicitors, but they were shut out of some of the really high volume stuff (Stage 3s) a while ago. Added to which, the County Court is far from the be all and end all for the Bar- agents don’t touch the Crown, Mags, Family hearings, many County Court hearings etc. Bringing in a requirement to have professional lawyers in the Tribunals would do much more to improve the Bar’s monopoly on advocacy, as would ditching remote hearings completely- I don’t suggest that either of those things be done, to be clear.
So far as the public interest, rather than our narrow professional interest, is concerned I’d say this; I have yet to hear of an agent behaving badly, but if they were to then there would in all probability be no shortage of homes for a complaint. Most LPC agents are in the invidious position of being vulnerable to complaints to either the SRA or the BSB! It is laughable to suggest that they are unregulated and free to do as they please.
There are two things here. First, this is not about LPC per se, but about the operation and boundaries of the LSA. Second, there is no requirement for agents to be SRA or BSB regulated, and it is far from clear that they would fall under the remit of either, even if registered.
Whilst I think we can all understand the concerns about unregulated persons providing advocacy in these kinds of hearings, in eviction and mortgage cases at least it seems the system is heavily reliant on solicitors agents and paralegals (at least where I am). It would seem excessive to require barristers and solicitor-advocates in every single case and doubtless it is helpful to the courts and to tenants and mortgagees to have someone help them with a ten minute hearing that can have hugely serious consequences but in which the legal questions are almost always routine.
The case seems thinner for landlords and mortgagors but of course many landlords are not wealthy at all and the rental property will often be a key source of income for them – so if they have a non-paying tenant they are unlikely to be able to afford expensive representation!
To echo what you and others have said, really what we need is that this situation be formalised – the courts confirm exactly what kinds of hearings this should be allowed in, and what the requirements are, and a regulatory solution be found to ensure that there can be some redress when there is misconduct or poor service.
The agents don’t represent tenants or mortgagees. Paralegals employed by a solicitor are a different thing again, I’d say clearly within LSA. A ‘paralegal’ not employed by a solicitor is just a person.
Yes re paralegals employed by solicitors or other authorised bodies. But sometimes it is not clear when their rights of audience are automatic or should be requested from the judge (because of confusion over exactly what kinds of hearings are the sort that would have been ‘in chambers’ before the CPR). Seems to be commonly regarded for possession hearings, but on what basis?
Re solicitor’s agents yes, but as I say, understandably this is still necessary for many landlords to keep costs down. Especially when tenants are rarely good for any costs orders made against them.
If not in chambers then no rights of audience for agent or paralegal, requested or not. This is not in any doubt. I’m surprised you think so, given your set up.
As to landlords keeping costs down, I genuinely don’t think that is a reason for avoiding the LSA requirements, just as it wouldn’t be for tenants.
Halborg v. Apple (UK) Ltd & O2 Holdings Ltd County Court at Central London. HHJ Backhouse, 3 May 2022, suggests that there are
Rights of Audience for a Solicitors Agenti n the County Court. The term “in Chambers” is an old one. Replaced somewhat by the terms “public” and “private”. Nearly all civil hearings are now public, bar where there are safety or confidentiality concerns.
This is exactly the judgment this note is reporting on. And no, mortgage possession hearings, stays of eviction, and most (though not all) kinds of application hearings are still considered to be ‘in chambers’.