Attending counsel in civil cases

The professional conduct rule which requires attending on counsel at court has been relaxed in the case of small claims and fast track civil cases, writes Nicola TaylorThe new provision regarding attending on counsel at court (which came into force on 3 April 2001, having received the Lord Chancellors approval) is set out below.

It replaces principle 20.04 and the notes which appear in the Guide to the Professional Conduct of Solicitors, 1999, eighth edition.Why the change?The principle and notes have been amended to reflect the aims of the civil justice reforms for greater efficiency and they bring solicitors professional rules in line with the Civil Procedure Rules 1998 (CPR).

Rule 46.3 of the CPR provides that the court may award an additional sum in respect of attendance on counsel in fast track trials only where the court considers it necessary for a legal representative to attend to assist the advocate.

The Law Societys Council decided that a blanket requirement that counsel must always be attended in civil cases in all circumstances should be varied.

The effect of the changes is to bring the treatment of certain civil cases more in line with treatment of cases in the magistrates and crown courts.

While the professional requirement to attend counsel in all civil cases was under review, the vice chancellor indicated his view that attendance for the purposes of rule 46.3(2)(b) would be necessary (see [1999] Gazette, 3 June, p 39).What has changed?The amended principle and notes make it clear that attendance may be dispensed with in small claims and fast track civil cases where the solicitor is satisfied that it is reasonable in the particular circumstances of the case that counsel be unattended.

The solicitor will be so satisfied where it is clear that the interests of the client and the interests of justice will not be prejudiced by counsel appearing alone.

Attendance will normally be dispensed with in small claims and fast track civil cases unless any of the exceptional circumstances exist of the kind which are listed in note 4.It should be remembered that principle 20.04, along with other rules of conduct, are currently being reviewed by the Law Societys regulation review working party.l For additional information, contact the Societys professional ethics guidance team on 0870 6062577.Nicola Taylor is part of the Law Societys professional ethics division

The new provision 20.04 Attending advocates at court.

Where counsel has been instructed, the instructing solicitor is under a duty to attend or arrange for the attendance of a responsible representative throughout the proceedings; save that attendance may be dispensed with in the magistrates court or in certain categories of Crown court proceedings and in small claims track and fast track civil cases, where the solicitor is satisfied that it is reasonable in the particular circumstances of the case that counsel be unattended.

The solicitor will be so satisfied where it is clear that the interests of the client and the interests of justice will not be prejudiced by counsel appearing alone.Where a solicitor advocate has been instructed in a Crown court case, the instructing solicitor should attend or arrange attendance of a responsible representative where this is necessary for the proper conduct of the case.Crown court cases1.

Attendance on counsel may be dispensed with in the Crown court only in the following categories of hearing:(a) trials;(b) hearings of cases listed for pleas of guilty;(c) sentencing hearings following committals for sentence;(d) hearing of appeals against conviction or sentence.2.

Attendance on counsel in the Crown court will not normally be dispensed with:(a) where the client is charged with an offence included in Class 1 or 2 as determined pursuant to section 75(2) of the Supreme Court Act 1981;(b) if the proceedings have been instituted or taken over by the Serious Fraud Office, or are before the Crown court by reason of a notice of transfer given under section 4 of the Criminal Justice Act 1987;(c) where the client was a child or young person at the time the Crown court acquired jurisdiction;(d) where the client is unable to understand the proceedings or give adequate instructions to counsel because of inadequate knowledge of English, mental illness or other mental or physical disability;(e) on the last day of a trial if the client was likely if convicted to receive a custodial sentence and it is expected that sentence will then take place; and the day on which the client is in fact sentenced, whether or not it coincides with the last day of any trial;(f) on days where a significant number of defence witnesses are to be marshalled;(g) in a trial where there are a substantial number of defence documents;(h) where counsel is representing more than one defendant;(i) where the client was likely to disrupt proceedings if counsel were to appear alone;(j) on days where counsel is likely to require notes of the proceedings to be taken for the proper conduct of the defence;(k) in cases outside the above criteria where there are exceptional circumstances such that it was desirable that counsel should be attended.3.

Where it is necessary to take a proof of evidence from an unexpected witness during a trial or to hold a conference at court due to a late change of advocate, attendance on counsel for that part of the preparation of a case will not normally be dispensed with.Small claims track and fast track civil cases4.

Attendance on counsel will normally be dispensed with in small claims track and fast track civil cases except:(a) where the case is more complex than a typical small claims or fast track case;(b) where the determination of costs at the conclusion of proceedings requires the presence of the solicitor;(c) where one of the parties in the case is a child;(d) where the client is unable to understand the proceedings or give adequate instructions to counsel because of inadequate knowledge of English, mental illness or other mental or physical disability;(e) where counsel is representing more than one party;(f) where the client is likely to disrupt the proceedings if counsel were to appear alone;(g) where there are any issues likely to arise which question the clients character or the solicitors conduct of the case;(h) where there is any other exceptional circumstance which makes it desirable that counsel be attended.Where it is proposed that counsel be unattended5.

Where a solicitor proposes that counsel should appear unattended he or she must:(a) so inform counsel and deliver a full and detailed brief sufficiently early before the hearing to enable counsel to consider the papers and to decide whether it would be appropriate for counsel to attend alone; and(b) inform the client that counsel will be unattended and tell the client both the name of counsel and how instructions may be given; and(c) attend on counsel or send a representative where(i) counsel originally instructed or subsequently substituted informs the solicitor, either before or during the proceedings, that he or she does not believe that it is appropriate for counsel to be unattended; and(ii) attendance is necessary in the proper and efficient administration of justice.6.

The [Law Societys] Council, when considering any complaint that 20.04 has not been observed, will take into account all the practical difficulties, the impact of rule 46.3 of the Civil Procedure Rules 1998 and any legal aid regulations affecting the position.