RIGHTS OF AUDIENCE AT STAGE 3 HEARING
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In McShane v Lincoln, Birkenhead County Court, case number B11B1440 – 28 June 2016
the District Judge held that a stage 3 hearing in the portal process required a qualified solicitor or barrister or CILEX fellow to appear and that no one else had rights of audience.
Section 12(1) of the Legal Services Act 2007 designates certain activities as “reserved legal activities” including the exercise of a right of audience and the conduct of litigation.
Schedule 2, paragraph 3 of the Act, defines a right of audience:
“(1) A “right of audience” means the right to appear before and address a court, including the right to call and examine witnesses.
(2) But a “right of audience” does not include a right to appear before or address a court, or to call or examine witnesses, in relation to any particular court or in relation to particular proceedings, if immediately before the appointed day no restriction was placed on the persons entitled to exercise that right.”
Section 13(2) of the Act provides that a person is entitled to carry on a reserved legal activity where:
- the person is an authorised person in relation to the relevant authority; or
- the person is an exempt person in relation to that activity.
The claimant submitted that the agent, who it was accepted did not himself have the necessary qualifications to exercise rights of audience, was an exempt person.
The relevant exemption in relation to a solicitor’s agent is set out in schedule 3 paragraph 1(7):
“The person is exempt if—
- the person is an individual whose work includes assisting in the conduct of litigation,
- the person is assisting in the conduct of litigation—
- under instructions given (either generally or in relation to the proceedings) by an individual to whom sub-paragraph (8) applies, and
- under the supervision of that individual, and
- the proceedings are not reserved family proceedings and are being heard in chambers—
- in the High Court or county court, or
- in the family court by a judge…”
Schedule 3 paragraph 8 states:
“This sub-paragraph applies to—
- any authorised person in relation to an activity which constitutes the conduct of litigation;
- any person who by virtue of section 193 is not required to be entitled to carry on such an activity.”
The court pointed out that the importance in determining this issue is that if the solicitor’s agent is not exempt, then he may be committing a criminal offence under section 14 of the Legal Services Act 2007:
“(1) It is an offence for a person to carry on an activity (“the relevant activity”) which is a reserved legal activity unless that person is entitled to carry on the relevant activity.
(2) In proceedings for an offence under subsection (1), it is a defence for the accused to show that the accused did not know, and could not reasonably have been expected to know, that the offence was being committed.
The court here said that the issues it had to decide where:
- Is the hearing in Chambers?
- Is the advocate assisting in the conduct of the litigation?
- Is the advocate assisting under instructions given by and under the supervision of an authorised person as defined in subparagraph (8)?
It was agreed that if the answer to any of those questions is no then the solicitor’s agent did not have a right of audience at a stage 3 hearing.
Here the court held that in accordance with CPR 39.2 stage 3 hearings will be public hearings, and do not take place in “chambers” as the term was understood in the previous rules which it was accepted should determine this aspect of the case.
The pre 1999 equivalent was an Assessment of Damages Hearing, which was held in Open Court with the judge and advocates robed, and oral evidence given on oath.
The matter could now be dealt with by way of a disposal hearing upon the case papers, without the presence of the claimant but that was still a final contested hearing and still a public hearing.
That was enough to dispose of the matter but the judge went on to consider the other point.
The judge held that the work of a solicitor’s agent does not include assisting with the conduct of litigation and under section 12 of the Legal Services Act 2007 “conduct of litigation” and “exercise of a right of audience” are distinct and separate reserved legal activities.
This was demonstrated by the fact that under Schedule 3, paragraph 1(2) the court had power to grant a right of audience on a case by case basis, but there is no such power in relation to the conduct of litigation.
The court considered that the decision in Agassi v Robinson  1 WLR 2126, in relation to the predecessor to the Legal Services Act 2007, that is section 119 of the Courts and Legal Services Act 1990, was relevant and that the same principles should apply.
The judge then said:
“I am not satisfied therefore that applying this definition, a solicitor’s agent’s work includes assisting in the conduct of litigation (as required under Schedule 3, paragraph 7(a)). This may be distinguished from the work of a solicitor’s clerk or legal executive employed by the solicitor who assists with the preparation of the case before attending a hearing who is clearly assisting in the conduct of litigation.”
Historically solicitors would instruct other solicitors firms to appear on their behalf in other parts of the country. This was described as “agency work” and largely involved attending on housing matters, particularly mortgage possession claims which under the CPR are heard in private. However it also included appearing on interlocutory hearings as they were known, as these were heard in chambers. For open court work solicitors or counsel were instructed.
With the introduction of the CPR the demarcation between what is or is not a public hearing has become blurred and thus who may appear at such hearings are unclear. There is currently some disquiet amongst those who have expended very considerably to achieve the necessary qualifications to exercise the right of audience that this is being exercised regularly in breach of the regulations.
The case of a solicitor’s agent is markedly different to that of the historical instruction of an agent. The concept of a solicitor’s agent is a relatively new development, and many thus employed are persons who have legal qualifications but for some reason or other cannot obtain a professional qualification or employment as a solicitor or barrister. They will normally act as a freelance and self-employed advocate and have no previous involvement in the case until instructed to attend the hearing.
The judge also found that the solicitor’s agent was not supervised by an authorised litigator as per paragraph 1(7)(b) of Schedule 3 of the Legal Services Act 2007.
The judge said:
“There are important reasons for this provision, which provides protection to the public in the event of negligence or misconduct, as solicitors and barristers are required by law to have professional indemnity insurance, and are subject to regulation and possible disciplinary sanction by their professional bodies.”
Although this is a first instance decision, it researches thoroughly the law and is an important, and in my view correct, decision.
How does this decision square with the increasing use of McKenzie Friends?
Chief Master Marsh gave guidance.
He said that the starting point was to consider whether the applicant reasonably needed such assistance. If so the scope of that assistance should be determined and that required consideration of the applicant’s personal position, the context in which the application was made, the principles in the overriding objective and the guidance in Practice Notes: McKenzie Friends: Civil and Family Courts  1 WLR 1881.
Here the Master held that it was appropriate to appoint a McKenzie Friend and for him to have rights of advocacy in a full High Court trial, but that is “an exceptional course of action… only justified by exceptional circumstances”.
The Master said that the permission was not open-ended and could be withdrawn at any time if it was abused or if the McKenzie Friend sought to delay the conduct of the trial.
Here the claimant had difficulty in understanding written material, as well as the technical nature of the case and thus it was reasonable for him to call on assistance. The McKenzie Friend proposed to act free of charge and had already won a similar case when representing himself.
However the McKenzie Friend also had a number of unmet costs orders against him, including ones in favour of the defendant here.
A worrying decision that comes very close to saying that anyone who needs representation can choose anyone and does not need to have a lawyer.
This representative has ignored costs orders against him and thus can represent people in court but treat court orders that he does not like with impunity.
Thus this person is allowed to appear in a High Court trial but a solicitor’s agent is not allowed to appear at a stage 3 hearing.
I remain of the view that it is a criminal offence to appear in court as an unqualified representative, except in certain circumstances, and that was the view of the judge in the case of McShane v Lincoln, considered above. Those circumstances include applications in chambers and matters in the Small Claims Court.
On what basis has any judge the power to overrule the criminal law?
My view is that a judge who does so is potentially guilty of the criminal offence of aiding and abetting an offence under section 14 of the Legal Services Act 2007.