On 28 June 2016, District Judge Peake, sitting at the County Court at Birkenhead considered the issue of whether ‘solicitor’s agents’ have rights of audience to appear in a Stage 3 hearing in the MoJ personal injury portal. The answer was a resounding no.
The claimant had instructed a solicitor’s agent for the Stage 3 hearing due to take place on 18 April 2016. The defendant challenged the agent’s rights of audience. The judge listed this matter for a full hearing as the court had insufficient to deal with the matter on the day. Both sides were represented by counsel at the June hearing.
The judgment, which is available here with kind thanks to Gordon Exall’s excellent Civil Litigation Brief, will, if followed elsewhere, have a significant and far-reaching impact on those describing themselves as solicitor’s agents and their clients.
The phrase ‘solicitor’s agent’ is of no fixed definition and does not derive from either statute or the Civil Procedure Rules (“CPR”). Its origins lie in the time-honoured practice of one solicitors firm, when instructed for a hearing at a distant court, instructing a local firm to attend the hearing on their behalf as agents of former. It also applies to those paralegals and other caseworkers who attend hearings on behalf of their own supervising solicitor. In the current context it signifies agents who provide advocacy services and do not have their own rights of audience to appear before the tribunal.
Solicitor’s agents justify their ability to be heard by the courts before which they appear through an interpretation of the statutes and rules governing the rights of audience which they argue renders them exempt from needing to have rights of audience.
The starting point is the Legal Services Act 2007 (“LSA”). Section 12 of the LSA states that exercising a right of audience is a reserved legal activity. Section 13 states that a person is entitled to exercise a right of audience if he/she is an ‘authorised person’ or if he/she is an exempt person. Authorised persons include barristers and solicitors who are authorised by the approved regulators.
The provisions relating to exempt persons are found in Schedule 3, paragraph 1 of the LSA. Sub-paragraph 7 states that:
“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.”
Sub-paragraph 8 provides that:
“This sub-paragraph applies to—
(a) any authorised person in relation to an activity which constitutes the conduct of litigation;
(b) any person who by virtue of section 193 is not required to be entitled to carry on such an activity.”
In accordance with Schedule 4, Paragraph 4(1):
“The “conduct of litigation” means—
(a) the issuing of proceedings before any court in England and Wales,
(b) the commencement, prosecution and defence of such proceedings, and
(c) the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).”
In order to be an exempt person, a solicitor’s agent must prove that their work includes assisting in the issuing of proceedings, commencing prosecuting or defending such proceedings or performing ancillary functions under the instructions and supervision of an authorised individual, and that the proceedings in which they appear are heard in chambers.
There is no definition provided within the LSA for ‘chambers’. It is a term that was used in the Rules of the Supreme Court in contrast to ‘court’ but in the CPR the distinction is between hearings in public and those to be heard in private. In R v Bow County Court  1 WLR the Court of Appeal stated that “in private” meant “in chambers”.
CPR Rule 39.2 states that hearings should ordinarily be in public but at r.39.2(3) a list of reasons are provided to allow the court to hold the hearing, or part of it in private. 39PDA.1.5 lists those hearings which “shall in the first instance be listed by the court as hearings in private” owing to the confidential information to which the hearing relates (such as financial information in claims for possession by mortgagees or landlords due to the defendant’s arrears).
Solicitor’s agents, and the advocacy agents through whom they often operate as self-employed advocates, state that when attending such hearings in private they are assisting in the conduct of litigation under the instructions of the solicitors and the supervision of the managers within the agency.
The Judgment in McShane v Lincoln
DJ Peake asked 3 questions to which the answers would all have to be yes for the solicitor’s agent to be exempt from needing to have rights of audience (which he did not): 1) is the hearing in chambers; 2) is the advocate assisting in the conduct of litigation; and 3) is the advocate assisting under instructions given by and under the supervision of an authorised person?
The judge answered all 3 questions in the negative. His answer to the first question was predicated on the basis that the hearing is a final contested hearing and is therefore a trial so is to be heard in public, not private, to preserve Article 6 rights to a fair trial.
The pre-CPR equivalent was an assessment of damages hearing for which counsel were robed and evidence given on oath. This finding is unlikely to be controversial, indeed some of the biggest agencies instructing solicitor’s agents do not send their advocates to Stage 3 hearings due to the public nature of the hearings.
The judge’s findings when answering the second and third questions are far more fundamental. The requirement to be assisting in the conduct of litigation under proper supervision and instructions applies to all cases in which solicitor’s agents appear; unlike the answer to the first question, it is not limited to Stage 3 hearings.
In relation to the second question, the judge held that the definition given to the ‘conduct of litigation’ should be a narrow one and it ought not to extend beyond the steps set out in the LSA. He was of the opinion that the conduct of litigation and rights of audience are distinct terms, without overlap, such that the exercise of a right of audience does not equate to conducting litigation. As solicitor’s agents often have no involvement with the case upon which they are instructed, the judge held that the provision of advocacy services did not constitute the conduct of litigation. Indeed, the counter argument would be rather absurd: an individual would be able to appear before a court because he/she assists in the conduct of litigation solely by appearing before that court. Such a circular argument is not sustainable.
As to the third question, the judge reached his answer that the solicitor’s agent was not supervised by an authorised litigator because of the way in which the solicitor’s agent’s agency operated. The judge held, correctly, that the LSA requires the individual instructing the agent and supervising him/her to be the same. The way the agencies work is that instructions are received from firms of solicitors and the agents are supervised by managers employed by the agency. The agency does not have conduct of the case and is not ‘on the record’. The judge provided in a rather sweeping statement that “there can be no element of supervision in such instructions.” This is surely a matter to be determined on the facts of each case and not a generalisation. However, the judge is likely to be correct that in most cases there is no supervision by the instructing solicitor. It is apparent that to get past this obstacle, those using solicitor’s agents from such agencies (and not case workers or paralegals employed within the firm) will have to supervise the agents sent on their behalf and cannot outsource this supervision to the agency.
This judgment shines a light on the confused rules and laws relating to who can exercise rights of audience and in which circumstances. It is apparent that the current position is not sustainable as a great deal of cases are being conducted by solicitor’s agents who, if DJ Peake’s answers to his second and third questions are correct, neither have rights of audience nor the requisite exemption from the requirement to have such rights.
It should, of course, be borne in mind that, many district judges do allow solicitor’s agents to appear before them on a daily basis. Indeed, one argument in favour of allowing a more relaxed interpretation to the rules than that afforded by DJ Peake is that so many hearings are conducted by solicitor’s agents that it would not be practicable to prevent it.
Should this judgment be followed, and although not binding there is no legal reason why it should not be, cases will inevitably be adjourned or decided against parties who sought to be represented by such agents. In such a scenario, solicitor’s agents are not a cheaper alternative to the Bar but instead become an additional expense causing increased delays or adverse findings.
The rules need to be clarified so that it is clear whether the interpretation relied on by solicitor’s agents is correct or if DJ Peake’s judgment is to be upheld and a strict interpretation of the rules adopted. The consequence would be either that solicitors bring such instructions in-house by having those under their direct instruction and supervision carry out such work, or they rely on those who have, as DJ Peake notes, “the necessary qualifications to exercise a right of audience”. We would suggest solicitors avoid the issue completely and instruct counsel, but then of course we would say that…!
© Chambers of Lawrence Power