Who has a right of audience at a Stage 3 hearing? This issue has been considered in the county court and I am grateful to barrister Jonathan Dingle for sending me a copy of the decision of District Judge Peake in McShane -v- Lincoln (Birkenhead County Court 28th June 2016). click-here-to-see-case
“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 unclear. There is currently some disquiet among those who have expended very considerably the necessary qualifications to exercise a right of audience that is being exercised regularly in breach of the regulations.”
The action was listed for a Stage 3 hearing under the MOJ portal scheme. The claimant was represented by a solicitor’s agent. The agent not being a solicitor but from an agency instructed by the claimant’s solicitor. The defendant objected to the agent’s right of audience and the matter was listed for a hearing on the issue (where the claimant was, perhaps ironically, represented by counsel).
The detailed regulations are set out in the Act. The judge identified three issues:
- Was the hearing “in chambers”?
- Was the advocate “assisting in the conduct of litigation”?
- Was the advocate assisting under instructions given by and under the supervision of an authorised person.
If the claimant failed on any of those issues then the “agent” did not have a right of audience.
MATTERS OF COMMON GROUND
- It was accepted by both parties that the solicitor’s agent was, by virtue of his own qualifications, not authorised to exercise a right of audience.
- It was the claimant’s case that an agent in these circumstances was an exempt person in relation to a reserved activity.
A POTENTIAL CRIMINAL OFFENCE
The judge considered section 12(1) of the Legal Services Act 2007 and the exemption in Schedule 3 Paragraph 1.7 to a solicitor’s agent who has a right of audience in chambers. If a solicitor’s agent does not come within the exemption then they may be committing a criminal offence under section 14 of the Act.
IS A STAGE 3 HEARING A HEARING IN CHAMBERS?
The judge decided it was not. The purpose of the hearing was to finally determine the claim by way of a contested hearing and submissions from advocates. It bears little difference to a disposal hearing. There was no justification for such a hearing to be in private.
The judge was clear that Stage 3 Hearings are public hearings. They do not take place “in chambers”.
IS THE ADVOCATE “ASSISTING IN THE CONDUCT OF LITIGATION”
There is an exemption in relation the an agent being able to assist in the “conduct of litigation”. However the judge held that the conduct of litigation and “exercise of a right of audience” are distinct and separate reserved legal activities. An advocate exercising a right of audience is not one and the same thing as assisting in the conduct of litigation.
WAS THE SOLICITOR’S AGENT SUPERVISED BY AN AUTHORISED LITIGATOR?
The judge held:
- Supervision must be distinguished from mere instruction. It involves close involvement such as a legal executive who has conduct of the case under the supervision of a principal solicitor.
- There was no such relationship in existence between a solicitor’s agent and his agency or the solicitor who has instructed the agency.
- The statute required that the supervision must be provided by the individual who is giving instructions. Any supervision by the manager of the agency would not suffice since they are not the same individual as the solicitor who is providing the instructions.