[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.