The government has been asked to resolve an ‘anomaly’ in the Legal Services Act 2007, which the bar warns could expose unregistered barristers to criminal liability if they act as solicitors’ agents in public hearings.
The Bar Council and the Personal Injuries Bar Association wrote to the Civil Procedure Rules Committee (CPRC) ahead of a meeting in February, calling for clarification on rights of audience.
The 2007 act exempts unregistered persons from needing rights of audience for hearings ‘in chambers’, a term no longer used in the Civil Procedure Rules.
The two bodies said it was clear that the legislation was drafted to confine the exemption to ‘hearings which are heard in private’ and called for the CPRC to resolve the ambiguity.
Minutes show that the committee was ‘not unsympathetic to the problem’, but decided to pass the decision onto the Ministry of Justice as the committee felt it was not its function to interpret the act to resolve legal ambiguity.
The ministry was unable to clarify whether it was looking into the issue.
The push to resolve the uncertainty comes amid growing concerns about when unregistered persons are entitled to appear in hearings.
While the bar says the exemption applies only to private hearings, providers of advocacy services say the act gives solicitors’ agents rights of audience in any hearing that would have been classified as ‘in chambers’ under the old rules.
The joint letter to the CPRC notes that the two associations have been made aware of an increasing use of solicitors’ agents (which they say are usually unregistered barristers) to conduct advocacy in stage-three personal injury quantum hearings in open court.
The letter says: ‘It strikes us as inherently anomalous that a right of audience can be exercised in these circumstances by a non-qualified advocate and we are aware that the issue is causing difficulties both for practitioners and lower courts as well as exposing unregistered barristers to a potential criminal liability.’
The Association of Costs Lawyers (ACL) has also called for a clampdown on allowing representatives without rights of audience to appear in public hearings.
The association said its concern is that ‘courts are continuing to hear unregulated and unqualified persons and failing to recognise the importance of a regulated profession’.
Iain Stark, chair of the ACL, said: 'The law and the profession have been modernised in recent years, and it is clear that there is a push towards the need to be practising lawyer with independent rights of audience to appear in open court.
'Having worked so hard to get where we are, some members will find it disappointing that the courts have not recognised this change and urge the MoJ to take action to ensure the integrity of the advocacy regime.’
When the Bar Council raised the issue of solicitors’ agents in a practice note last December, Quest Legal Advocates, which uses solicitors’ agents in MoJ stage-three hearings, said the bar’s interpretation was ‘unduly and unnecessarily cautious’ and ‘simply wrong’.