RIghts of audience: Managing clerks were target of exemption
A so-called solicitor’s agent – an unqualified advocate instructed by an agency on behalf of a law firm – did not meet the Legal Services Act 2007 requirements for rights of audience, a district judge has ruled.
District Judge Pratt in Haverfordwest said [1] the exemption in the Act for rights of audience “was to continue the long running practice of managing clerks attending administrative hearings”.
He went on: “It was not to drive a coach and horses through the requirements of qualification as a lawyer.”
In a ruling that also touched on the decision in Mazur – which the Court of Appeal is hearing next month – the judge deciding the preliminary issue of a Mr Boaten’s right of audience in a small claims trial relating to a parking charge.
The claimant, Vehicle Control Services Ltd, instructed Runcorn firm DCB Legal, which contracted with Elms Legal to provide attendance at the hearing. It in turn sub-contracted to Mr Boaten as a ‘solicitor’s agent’ – a long-established role.
DJ Pratt noted that the term ‘solicitor’s agents’ did not appear in any legislation and was described in the White Book as “misleading”.
Such a person’s “only arguable general right to appear” derived from being an exempt person under schedule 3 of the 2007 Act – and this was the correct name to use for them.
“This exemption historically stems from solicitors sending their (often unqualified) managing clerks to handle basic matters in what were termed ‘chambers’ hearings under the old County Court Rules (CCR) – a term now absent from the Civil Procedure Rules and Family Procedure Rules.”
To be an exempt person under the Act, DJ Pratt said, an individual had to be assisting in the conduct of litigation, acting under the instructions and supervision of the authorised litigator in the proceedings, and be heard in chambers.
On the first condition, in light of Mazur, “that must be more than advocacy alone” and he disagreed with the 2022 decision [2] of Her Honour Judge Backhouse in Halborg that advocacy could be considered part of the conduct of litigation.
“Otherwise, the distinction between litigation and advocacy would vanish,” DJ Pratt said. Rather, the person must “factually establish that they have assisted in the conduct of the litigation to a sufficiently meaningful degree”.
Here Mr Boaten had not and so his claim to be an exempt person fell at the first hurdle.
DJ Pratt still considered the other conditions and found Mr Boaten failed the second one too: he was also not working under the instructions and supervision of the authorised litigator – that was someone at either the claimant or DCB.
He said Parliament’s aim had been to preserve what Lord Bingham, in a 1998 case, called “the traditional right of solicitors’ managing clerks to conduct proceedings in chambers on behalf of the solicitors who employ them”.
Lord Bingham went on: “Such managing clerks are traditionally men and women of great experience, often members of the Institute of Legal Executives [now CILEX]. They can be relied on to observe the same principles of detachment, objectivity and professional duty as a qualified solicitor or barrister.”
DJ Pratt said this meant there must be “some nexus between the exempt person and the supervising solicitor conducting the litigation of a sufficient degree to approximate that traditional role of ‘managing clerk’ or equivalent”.
The third condition was more difficult to define as Parliament adopted the term ‘chambers’ in 2007 when it had become defunct in 1999.
DJ Pratt decided that it was shorthand for hearings of an administrative type and quality that would have been usually ‘in chambers’ under the old CCR.
“That definition is unsatisfactory in its lack of clarity. Further, the lens of history makes the view cloudier. The jurisdiction shift of the district judge role has removed many of the old CCR ‘in chambers’ hearings from the district bench altogether.
“The very straightforward matters historically attended by the ‘managing clerks’ have been removed piecemeal from the district judge’s role and are now handled by legal advisers or proper officers as an administrative function…
“So, the practice that Parliament intended to retain, has been gradually eroded from the court arena in any event.”
Nonetheless, a small claims trial “probably does fall into the small category of straightforward hearings likely to have been in chambers under the CCR”.
The judge added that, had he been asked to grant Mr Boaten a special right of audience, he would have been “slow” to do so. “It is clear that granting a right of audience is a rare exception for fact specific reasons.”
DJ Pratt added that, if the exemption was not continue the long-running practice of managing clerks attending administrative hearings, it would become “a wholesale unqualified advocacy scheme”.
According to the Elms Legal website, it is authorised and regulated for civil litigation and advocacy by CILEx Regulation.