Judge calls for guidance on rights of unqualified agency advocates

Courts: Guidance needed

County court judges would benefit from “more authoritative guidance” from the higher courts on whether unqualified solicitor’s agents have rights of audience, a circuit judge has said.

Her Honour Judge Backhouse in Central London County Court said there was “unease” about the widespread use of agency advocates but ruled that a Bar student used as an advocate by LPC Law was entitled to appear in a hearing before a deputy district judge.

It was argued that, without the activities of LPC Law and other agency advocates businesses, there would be more work available for solicitors and barristers, which might lead to more training contracts and pupillages being available.

HHJ Backhouse said: “I have no evidence as to what the effect would be of removing solicitor’s agents from most county court work but the working model of LPC could be said to be in line with the diversification of the provision of legal services in recent years and may provide a lower cost source of advocacy in less complex county court cases.”

LPC Law, a regulated law firm based in south London, has a small number of staff and uses around 260 people around the country to handle advocacy on behalf of client law firms. Last year, an employment tribunal ruled that they were workers and not self-employed.

Some are qualified solicitors and barristers but the majority are students who have passed the legal practice course or Bar professional training course.

The Legal Services Act 2007 permits unqualified people like them to handle advocacy where they are assisting in the conduct of litigation, operating under the instruction and supervision of a qualified lawyer, and the proceedings are being heard in chambers.

In this case, the claimant is a solicitor, Scott Halborg, who is suing Apple and O2 over a mobile phone which he alleges is defective. The claim is limited to £5,000. Mr Erridge, a Bar course graduate and solicitor’s agent instructed by LPC Law, appeared for Apple at a hearing on its application to strike out the claim.

In four years of working with LPC, he has received some 1,500 instructions.

Mr Halborg, acting through his firm, Deals and Disputes Solicitors, challenged Mr Erridge’s right of audience, but Deputy District Judge Balchin rejected this (and ultimately the application).

But he granted permission to appeal given the lack of clear guidance on the issue – the highest decision to date was from District Judge Peake in the 2016 case of McShane v Lincoln.

DDJ Balchin said: “I am acutely aware Mr Halborg does, to some extent, have force in his argument that because LPC are doing this, it does open up opportunities to perhaps unqualified and unregulated advocates under different brands to appear in these courts.”

On appeal, HHJ Backhouse found that Mr Erridge met the three limbs of the test in the 2007 Act.

She rejected the claimant’s argument that advocacy could not be considered to be ‘assisting with the conduct of litigation’, saying the words were “sufficiently broad” to include it.

In any case, the evidence from LPC Law satisfied her that Mr Erridge’s non-advocacy work meant he was assisting in the conduct of litigation.

The judge went on to find that LPC operated a system which allowed it to oversee and direct its advocates, and ensure they were competent to perform the job.

“It provides significant levels of training, both initially and on an ongoing basis. Advocates are observed at court initially; their performance is then monitored through their reports to LPC. The tasks given to them increase in complexity as their experience increases.”

HHJ Backhouse suggested that the definition of ‘in chambers’ was the most difficult element of the test but held it was whether the hearing in question was “broadly of the type of hearing which would have been heard in chambers” under the old County Court Rules 1981. This was such a case.

She concluded: “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. The prevalence of solicitor’s agents appearing in the county courts might be said to be taking work from qualified solicitors and barristers who have worked hard to obtain those qualifications.

“However, I am satisfied from [LPC’s] evidence that, at least in relation to LPC, the people they instruct are not just ‘yanked off the street’ as Mr Halborg pejoratively suggested to the DDJ.”

The judge noted that the claimant’s counsel “acknowledged that working for LPC and similar firms can provide valuable experience for those seeking a training contract or pupillage”, and indeed that both he and LPC’s counsel had themselves worked for LPC before qualifying.

Further, there were various ways in which misconduct by a solicitor’s agent could be handled and lay clients protected.

In dismissing the appeal, HHJ Backhouse ended: “I consider that judges in the county court would benefit from more authoritative guidance from the senior courts.”

In a statement, LPC Law described the ruling as “by far the most detailed and considered” of any concerning these provisions of the Act.

It went on: “Having attended over one million hearings since 1994, this judgment is welcomed by over 200 LPC Law advocates who continue to attend hearings on a daily basis, as exempt persons under the Legal Services Act 2007.”

Mr Halborg told Legal Futures: “I took the point about rights of audience because I am a solicitor-advocate and I felt that there is a real danger that unregulated representatives are breaching the statutory provisions and stretching to breaking point what was intended by Parliament by the exemption.

“Unfortunately, the Court of Appeal remitted the case back to the county court on the basis of it being perceived as academic, and it seemed to me very hard to get permission later to appeal again to the Court of Appeal from the considered judgment on appeal of HHJ Backhouse, a judge I greatly respect from previous professional work.

“As HHJ Backhouse made clear, however, this remains an area crying out for guidance from the higher courts.”

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