How do two recent judgments affect barristers acting as solicitor’s agents?

The Bar Council recently published an updated version of the document Acting as a Solicitor’s Agent (the document). The document sets out the Bar Council’s views pertaining to rights of audience at certain court hearings pursuant to schedule 3, paragraph 1(7) of the Legal Services Act 2007 (LSA) and is expressly stated not to be ‘guidance’ for the purpose of the Bar Standard Board’s Handbook. The document does not, therefore, form part of the code of conduct for barristers; it has no legal effect and cannot be relied on as legal advice.

Ultimately, the question of whether an individual is exempt in accordance with paragraph 1(7) can only be determined on a case-by-case basis, a point acknowledged by the Bar Council, because the test is fact-sensitive depending on the individual and the type of hearing. Notwithstanding this, the document refers to two recent county court decisions: McShane v Lincoln (McShane) on 27 July 2016 and Ellis v Larson (Ellis) on 20 September 2016.

In both cases, a Mr Sisto was instructed to represent an adult claimant at a stage-three disposal hearing and because it was found that the hearing was not ‘in chambers’ Sisto could not rely on the exemption at paragraph 1(7).

Significantly, the Bar Council and both judgments note that the different terminology introduced by the Civil Procedure Rules (i.e. private/public) did not alter the position in respect of any existing rights of audience (CPR 39PD 1.14). So, if Sisto had been attending a hearing that was ‘in chambers’ before the introduction of the CPR, he would have complied with paragraph 1(7)(c) of the test.

Whilst not required to do so, both judges went on to consider the other aspects of the test and found that Sisto was not assisting in the conduct of litigation or instructed/supervised by a solicitor (paragraphs 1(7)(a) and (b)).

The Bar Disciplinary Tribunal has considered whether an individual instructed by a firm of solicitors to attend a hearing was ‘assisting in the conduct of litigation’ in accordance with paragraph 1(7) and concluded that they were. To conclude otherwise would create an absurdity and defeat the purpose of the legislation because an exempt person would then not have to be instructed and supervised when exercising a right of audience. As an aside, the BSB has previously given a number of their members who exercised a right of audience in this way a reduction of up to three months on their pupillage as a result of the experience they gained from attending hearings in chambers.

It appears that, in both McShane and Ellis, the solicitors for the claimants had instructed a non-regulated company to arrange representation at the hearing and this was why Sisto did not satisfy paragraph 1(7)(b). Apparently Sisto was not a solicitor’s agent at all. Individuals instructed and supervised by a solicitor (even if they are not the solicitor on the court record as acting for that party) are in a different position to Sisto. This is reinforced by the fact that both judges have heard exempt individuals directly instructed and supervised by a solicitor in numerous hearings since handing down their judgments.

Commentary on this topic often focuses on it being a criminal offence to exercise a right of audience if not entitled to do so (section.14(1) LSA). Importantly, section.14(2) LSA makes clear that no offence is committed if, in effect, there was no intention to do so. For that reason, it is inconceivable that an individual instructed by a firm of solicitors to attend a hearing in chambers (following a longstanding practice that pre-dates the Courts and Legal Services Act 1990) could be found to be committing an offence.

In fact, any issue arising from individuals attending hearings in chambers in this manner would most likely be a regulatory issue for the solicitor instructing and supervising that individual.

Both McShane and Ellis were decided after the document was originally issued but have no binding authority. Given that there have been no recent changes to the relevant legislative provisions (the last of which came into force on 1 January 2010) but there have been recent changes to legal aid, court fees etc. which have caused difficulties for the junior bar, it is hard not to wonder whether the document has, in reality, been produced by the Bar Council seeking to undermine competition in the legal services market and to generate more work for the junior bar.

Len Crowder is director of LPC Law