RIGHTS OF AUDIENCE AND HEARINGS IN “CHAMBERS”: BAR COUNCIL GUIDANCE

I am grateful to Charles Bagot QC for referring me to the Bar Council publication “Acting as a Solicitor’s Agent”. This has a different view to those set out in earlier posts. It would be prudent for those involved in this debate to read that guidance in addition to the earlier posts on this topic.

THE NOTE

The note is not “guidance” but arises out of the Bar Council’s concern in relation to unregistered barristers qualifying as solicitor’s agents.

HEARINGS “IN CHAMBERS”

The note has a non-exhaustive list as to types of hearings that are “in public”

Pursuant to CPR 39.2(1) the general rule is that hearings are in public, albeit
paragraphs 1.5, 1.6 and 1.7 of CPR PD39A provide for some specific exceptions. In the Bar
Council’s view, the uncertainty surrounding the expression “in chambers” means that the
safest course is for solicitor’s agents only to appear at hearings which are “in private”.

THE CONCLUSION

The document concludes.

22. The LSA 2007 only permits individuals who are not authorised persons to exercise
rights of audience if certain criteria are satisfied. The fact that it is a criminal offence to exercise
a right of audience if those criteria are not satisfied demonstrates the seriousness which
Parliament attaches to these restrictions.
23. The Bar Council is concerned to promote compliance with the Act, since this is in the
interests of the proper administration of justice, the protection of consumers and the
protection of unregistered barristers who might otherwise open themselves up to potential
criminal liability. The decision in the McShane case interprets the exception in paragraph 1(7)
of schedule 3 to the LSA 2007 narrowly, such that, in the Bar Council’s view, many individuals
currently exercising rights of audience in reliance on this provision are at risk of contravening
the Act.

24. For these reasons, all individuals undertaking work as solicitor’s agents are urged to
consider carefully whether they fulfil the requirements of the LSA 2007 upon accepting every
new instruction and when attending at court. In particular, unless and until the decision of DJ
Peake in the McShane case is doubted or overruled, they should consider with care whether
the nature of their work properly enables them to describe themselves as assisting in the
conduct of litigation in the narrow sense explained, whether they are being supervised by the
solicitor with conduct of the case and whether the relevant hearing is in private.