Legal Cost Specialists

Rights of audience at detailed assessment

By on Jun 10, 2016 | 6 comments

The issue of rights of audience at detailed assessment has reared its head again.

This was prompted by The Personal Injuries Bar Association, with the support of the Bar Council, writing to the CPRC over their concerns that solicitor’s agents – usually unregistered barristers – were increasingly being used to conduct advocacy in open court at stage 3 quantum-only hearings under the various personal injury pre-action protocols.

The letter said the exemption in the Legal Services Act 2007 from needing rights of audience was plainly drafted to confine it “to hearings which are held in private”, although the Act uses the now out-dated phrase “in chambers”.

Ignoring for the moment the merits of restricting rights of audience for certain types of hearing, this is poppycock.

CPR 39.2(3) deals with when a hearing may be held in private (the default position being that they are in public):

“A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice.”

Why would the Legal Services Act be drafted to provide a specific exception allowing any unqualified unregulated muppet to attend, for example, a hearing concerning national security or concerning the interests of a child but exclude (with criminal consequences) attendances at what are often very routine hearings “in chambers” (that are now open to the public)?  The exemption provided by the Legal Services Act does no more than preserve the position as it has always been for certain types of hearing.  PD 39A, para.1.14 puts this beyond doubt:

“References to hearings being in public or private or in a judge’s room contained in the Civil Procedure Rules (including the Rules of the Supreme Court and the County Court Rules scheduled to Part 50) and the practice directions which supplement them do not restrict any existing rights of audience or confer any new rights of audience in respect of applications or proceedings which under the rules previously in force would have been heard in court or in chambers respectively.”

ACL chairman Iain Stark was reported as saying:

“Before Costs Lawyers, the courts utilised the legal myth of a so-called solicitor’s agent, notwithstanding that arguably these individuals had no rights of audience.”

Again, ignoring the issue of the merits of limiting rights of audience, the only “myth” is that the courts ever utilised a “legal myth” to allow rights of audience to law costs draftsmen, etc.

Rights of audience were previously governed by Section 27 of the Courts and Legal Services Act 1990 which, so far as relevant, read:

“Rights of Audience

(1) The question whether a person has a right of audience before a court or in relation to any proceedings, shall be determined solely in accordance with the provisions of this part.

(2) A person shall have a right of audience before a court in relation to any proceedings only in the following cases:

(e) where –

(i) he is employed (whether wholly or in part) or is otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(ii) the proceedings are being heard in Chambers in the High Court or a County Court and are not reserved family proceedings.”

Given there was previously no dispute that detailed assessments were heard “in chambers”, the language of the act unambiguously allowed law costs draftsmen, outdoor clerks, paralegals, etc to attend such hearings where they were: “otherwise engaged to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator”.  They did not need to be “employed”.  Where is the “legal myth” there?

    6 Comments

  1. Shall we just admit that the ACL are just a big bunch of hypocrites, having previously endured such issues as the ALCD?

    Harambe the costs monkey

    10th June 2016

  2. Unregulated costs monkeys should not be allowed anywhere near a Court. This is the point that Stark is trying to put forward. Why should they be allowed to go to Court when they haven’t paid over six grand over three years to the ACL to qualify? It is frankly a disgrace that such plebs can undertake any costs work at all. They should be hung and quartered for having the audacity to even so much as breathe in the direction of a qualified, regulated person.

    Northern Costs Monkey

    10th June 2016

  3. The ACL have to hold on to this argument because the whole point of switching from the ALCD to the ACL (i.e. becoming regulated and attempting to make costs a reserved activity) becomes redundant.

    The problem is, it will never happen.

    The concept of regulation, as far as I can tell, is that there is someone to complain to if things go wrong.

    An employee of a solicitor (whether another solicitor, a costs layers, or the completely unqualified tea boy) all have rights of audience by virtue of being an employee of the solicitor. They can all be personally reprimanded.

    An agent who is not regulated cannot be personally reprimanded, but the solicitor is ultimately responsible for their work (i.e. the agent sits in the solicitor’s shoes – as per Cran v Canon Leisure). Therefore the solicitor takes the risk if the work is not up to scratch.

    To me, this is why what Simon says above – with reference to the statutory provisions – must be right.

    This does still leave an opporunity for complaint in respect of those unregulated costs draftsman or others who are directly instructed by a litigant or an insurer.

    Robert Pettitt

    10th June 2016

  4. I agree with Simon. There is a question about supervision of the agent/ unregulated person as per Ahmed v Powell etc. If that is satisfied there is no issue.

    Amazing Dave

    10th June 2016

  5. Agreed. Based on a proper consideration of the Act (LSA 2007), there is no issue as to an unregulated person attending to conduct advocacy on a DA provided they are both engaged and properly supervised (the express reference to supervision being added by the 2007 Act). The solicitor carries the can if they get it wrong.

    Where PIBA is worked up is because this is increasingly being used, e.g. in Stage 3 RTA hearings. Since those hearings never existed pre LSA 2007, there is an interesting argument as to whether they can come within the ‘exception’ or not. Does the exception extend to hearings of a type which would have been in chambers pre CPR, or does it only cover those types of hearing that actually existed and were in chambers pre CPR?

    At least PIBA has an arguable point here, even if it is just blatant protectionism. Quite why the ACL has to chip in I don’t understand.

    Anon

    10th June 2016

  6. Whilst agreeing with Simon, I cannot see what the ACL’s issue is, if an ACL comes up against an “unqualified costs monkey” or whatever term you wish to use, they will always triumph on any costs related issue, with victory for their client assured at any hearing due to their extensive training, superior intellect, good looks, exemplary advocacy skills, sartorial dress sense, their universal knowledge of all things costs (guaranteed by ACL membership) and that they are a “lawyer”.

    Anonny

    11th June 2016

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