Unqualified advocates are allowed to appear in court, judge rules

HHJ Backhouse calls for greater guidance as she dismisses challenge to County Court advocate’s right of audience

Unqualified advocates are allowed to appear in court despite the objections of barristers and solicitors, a judge has found.

Her Honour Judge Backhouse found in favour of an advocate from LPC Law whose solicitor opponent accused him of having no right to argue a strike-off hearing.

County Court advocates, sometimes known as solicitor’s agents, are not legally qualified but frequently appear in minor cases. The role is a useful stepping stone for wannabe lawyers seeking experience but qualified lawyers can resent the interlopers.

The spat in this case arose during a claim against Apple over an allegedly defective phone. Apple applied to have the claim struck out and sent along a Mr Erridge, a bar course graduate and advocate instructed by LPC Law. The claimant’s solicitor-advocate, Scott Halborg, objected, saying that Erridge had been “yanked off the street” and had no right of audience.

The judge backed Erridge and Halborg appealed to Central London County Court.

Under the Legal Services Act 2007, advocates who are assisting with the conduct of litigation under a solicitor’s supervision have a right of audience where the hearing is taking place “in chambers”. This phrase might be thought unhelpfully archaic, since there is no longer such thing as a hearing in chambers under the modern Civil Procedure Rules.

But Judge Backhouse held that the “in chambers” right of audience still exists so long as “the hearing in question is broadly of the type of hearing which would have been heard in chambers” in the old days.

These include hearings on mortgage possession, warrants of execution or possession, and some enforcement orders.

Backhouse also found that Erridge had indeed been “assisting in the conduct of litigation” and was properly supervised by a solicitor at LPC Law, as required by the 2007 Act.

As a result, he “was entitled to exercise a right of audience” against Halborg.

The judge noted that her finding contradicted several previous County Court decisions on this issue, so it would be handy for a higher court to settle the question once and for all.

LPC Law welcomed the decision, saying that Backhouse had provided a “comprehensive analysis of the legislation”. A spokesperson told Legal Cheek: “This judgment makes clear that the practice of solicitor agents appearing ‘in chambers’ hearings is entirely legitimate, provided that they are properly instructed and supervised, which LPC Law’s advocates always are”.

In a statement Halborg said: “I took the point about rights of audience because I am a solicitor advocate and I felt that there is a real danger that unregulated representatives are breaching the statutory provisions and stretching to breaking point what was intended by parliament by the exemption.”

He continued:

“Unfortunately the Court of Appeal remitted the case back to the County Court on the basis of it being perceived as academic, and it seemed to me very hard to get permission later to appeal again to the Court of Appeal from the considered judgment on appeal of HHJ Backhouse, a judge I greatly respect from previous professional work. As HHJ Backhouse made clear however, this remains an area crying out for guidance from the higher courts.”