RIGHTS OF AUDIENCE: WHAT IS MEANT BY CHAMBERS? CLAIMANT’S REPRESENTATIVE SENT HOME…

I am grateful to barrister Christopher Buckingham for sending me a copy of the judgment in National Westminster Bank -v- Smith. (27th February 2019). A copy of which is attached here E6BA4N32 – National Westminster Bank PLC v Smith (27.02.19) Approved Judg[2].     It relates to rights of audience in an application for summary judgment.   The Deputy District Judge considered whether an application for summary judgment was in “chambers”.  It was held that it was not in chambers and that the representative that had been sent to represent the claimant did not have a right of audience.  Mr Buckingham tells me that the claimant was ordered to oay the costs of the hearing.  (The judge declined to hear the claimant’s representative on the issue of costs as it had been determined they had no right of audience.)

THE JUDGMENT

  • This matter was listed for a hearing by the claimant for an application for summary judgment but Mr Buckingham, on behalf of the defendant, asked me to take as a preliminary point whether Miss Withers, who appeared on behalf of the claimant, had the ability to address the court and effectively represent the claimant at this hearing. Therefore, the whole of the hour allocated for the application has been dealing with preliminary point.
  • I have been assisted by submissions made by Mr Buckingham and Miss Withers and I have also been assisted by the transcript in the case of McShane v Lincoln, which very helpfully sets out the law and the provisions in relation to applications such as these, a case decided in the Birkenhead County Court on 28 June 2016. I have also been assisted by the two documents that have been passed to me by Miss Withers, the first is headed “Rights of audience for LPC Law Limited Advocates”, and the second is a document produced by LPC Law headed “Rights of audience”.
  • The position in respect of court advocacy is regulated by the Legal Services Act 2007 and s.12(1) designates certain activities as reserved legal activities which includes the exercise of a right of audience. Right of audience is defined in Schedule 2, paragraph 3, and essentially means the right to appear and address a court.  That right is given as a matter of course to solicitors or solicitor advocates who hold a practice certificate and members of the Bar.  Exemptions do apply to others and those exemptions appear in Schedule 3.  Paragraph 1(2) does give the court the power to exercise its discretion on a case by case basis that discretion being to allow someone to exercise a right of audience who does not come within the categories I have already indicated.  In paragraph 1(7), it provides a definition of those persons who, if they are not solicitors or barristers, do have the right to appear and that is an individual who is working includes assisting in the conduct of litigation and if the person falls within that category is also under instruction by an individual to whom subparagraph (8) applies and is under supervision of that individual.  Even if the person falls into that category, then they can only exercise the right if the proceedings are not reserved family proceedings and are being heard in chambers.  It seems to me the appropriate way to approach this case is to decide whether the hearing is in chambers because if it is not, then there is no need for me to consider the other points.
  • Rather surprisingly, chambers are not defined either in the Act or in the CPR. Generally speaking, in chambers means in private and assisted by CPR 39, which is headed “Miscellaneous provisions relating hearings”.  CPR 39.2(1) does say, “The general rule is that a hearing is to be in public”, and subparagraph (3) says, “A hearing, or any part of it, may be in private if…” and then gives a number of examples.  I have taken the view that none of the examples given apply in respect of this case or the application that has been made within it.
  • Practice Direction 39A also sets out paragraph 1.5, “The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3)(c)…” to which I have already been referred and, again, a number of examples are given, ten in number, and none of those apply in respect of this matter. The documentation submitted by Miss Withers, in a sense, does assist because in paragraph 29 of the first document to which I have referred, which is the rights of audience, it does day in paragraph 29(a):
“For hearings that are not in chambers, LPC Law will instruct a solicitor, solicitor’s advocate, or barrister.”
It is accepted obviously that Miss Withers does not appear within either of those three categories.
  • Then the other document which is headed “Rights of audience” does say on page 22:
“Whilst there is no clear definition of chambers, it has been argued that chambers equals in private as per CPR 39.2(3).”
There is no attempt in that document to argue that chambers does not mean in public.
  • On that basis, this seems to be an implied acceptance that chambers does mean in private and on the basis that this application does not fall within any of the provisions in CPR 39 or Practice Direction 39A, it must follow that the proceedings are in public and, on that basis, Miss Withers does not have a right of audience.
  • It is, of course, open to me to exercise a discretion in her favour but on the basis that there is insufficient time to deal with the application, it is not a matter that I need to consider. Clearly, it is a matter which should be dealt with on a case by case basis and it can simply be dealt with by me at a later date if I am asked to do so.  So on the basis that I have insufficient time to deal with it, I adjourn the matter to the next available date with a similar timescale of an hour.