Vehicle Control Services Limited v Stephen Langley

INTRODUCTION

This is a judgment on the preliminary issue of the right of audience of the ‘Solicitor’s Agent’, Mr Boaten, to appear for the Claimant at this hearing. This is a small claims trial relating to a parking charge. Mr Boaten has been instructed to attend. He is unqualified and therefore holds no rights of audience on his own account. Before continuing, I hope to express to Mr Boaten, that nothing is a criticism of him personally or professionally. He is a very helpful and able gentleman. I am very grateful to him for all his assistance and his professionalism in dealing with this preliminary point.

BACKGROUND

While a judge can always give permission for anyone to represent a party, only certain qualified people have the right to be heard. Historically, most usually barristers and solicitors. Barristers may be instructed to attend a hearing. The Solicitor often runs the litigation and may also attend to undertake the advocacy.

Thereafter terminology can become entangled. A qualified solicitor may act as ‘agent’ for another firm for a particular hearing. There has also been a longstanding practice of District Judges hearing unqualified individuals - ‘Managing Clerks’ or ‘Legal Executives’ or ‘Practice Managers’ - who work directly under a qualified solicitor in specific circumstances. For example, in very simple administrative type hearings for things like Third Party Debt or Charging Order hearings. It is a historic practice and over the last few years much of those administrative hearings have been shifted from the day-to-day work of the District Judge and is now undertaken by Legal Advisers or Proper Officers as an administrative function in the first instance.

Against that context some agencies offer advocacy-only services for more straightforward County Court hearings by instructing unqualified individuals on a contractor basis to attend hearings. They are self-styled ‘Solicitor’s Agents’. That term does not appear in any legislation and is described in the White Book as ‘misleading’ (infra). It refers to unqualified advocates rather than regulated professionals. They often provide advocacy-only services to other bulk-work solicitors or large in-house legal teams.

The question is whether this style of ‘Solicitor Agents’ have a right of audience at this hearing, acknowledging always that the judge has a discretion to allow an unqualified person to appear nonetheless.

LAW

Exempt Person

A Solicitors Agent’s only arguable general right to appear - unless it is a specific case where it is allowed - derives from being an Exempt Person under Schedule 3 of the Legal Services Act 2007 (‘the Act’). This exemption historically stems from solicitors sending their (often unqualified) managing clerks to handle basic matters in what were termed ‘chambers’ hearings under the old County Court Rules (CCR)—a term now absent from the Civil Procedure Rules (CPR) and Family Procedure Rules (FPR).

The commentary at White Book Vol. 2, para. 13-10 is inciteful:

“…The combined effect of 2007 Act, ss.13, 19, and Sch.3 para.1(7), is to provide that in certain circumstances a person “whose work includes assisting in the conduct of litigation” is an exempt person for the purpose of exercising a right of audience. Before the Courts and Legal Services Act 1990 came into effect, solicitors’ general rights of audience in the High Court and county courts when sitting in chambers, extended to their responsible representatives; particularly to solicitors’ clerks and legal executives, and to persons providing clerk’s services and who were not employed but acted under instructions. There was no such right in open court although, in the exercise of a discretion, a judge could grant this. These statutory provisions were designed to preserve that position and must be seen against that background.

Some unqualified persons who offer advocacy services describe themselves as “solicitor’s agents”. This is a misleading term in this context as it implies an authority which does not exist. “Solicitor’s agent” is not a term used in the 2007 Act. Such persons are generally self-employed and obtain work through an agency. Being unqualified they are not subject to the disciplinary process of any profession. Importantly, they are not “authorised persons” within s.18 of the 2007 Act nor “exempt persons” within s.19 and Sch.3 para.1(7) states that a right of audience accrues to such a person when they are: assisting in the conduct of litigation …; acting under the instructions and supervision of an authorised litigator e.g., a solicitor; acting in proceedings that are being heard in chambers and which are not reserved family proceedings …” (my emphasis)

The term ‘Solicitors Agent’ is therefore misleading. The better nomenclature is of Exempt Person. The key provision is the schedule 3, para. 1(7) of the Act.

One must remember of course that under the CPR anyone may represent a party at a Small Claims Track trial, provided the lay client attends. Also, employees of housing management bodies have a specific exception for possession and certain injunction proceedings. Courts also retain a discretion to grant rights of audience to any person (Schedule 3, para. 1(2)).

There has been recent discussion on this and related issues. Mazur v Charles Russell Speechlys [2025] EWHC 2341 is a case focused on ‘conducting litigation’. It is important to understand that Mazur says nothing about rights of audience. Mazur addresses the different issue of who is authorised to conduct litigation. It has relevance to rights of audience in describing who has the right to conduct litigation; the precursor to the exemption.

Section 12(1) of the Act defines ‘reserved legal activity’ as including separately - ‘the exercise of a right of audience’ and ‘the conduct of litigation’. Section 13(2) provides that a reserved legal activity can only be carried out by persons who are authorised persons or by persons who are exempt. Authorised persons are in broad terms qualified Barristers, Solicitors and Legal Executives who have been provided with a practicing certificate by the relevant regulator (SRA, BSB etc.) to carry out the relevant activity. ‘The conduct of litigation’ is defined by paragraph 2 of schedule 2 to the Act as ‘…the issuing of proceedings…the commencement, prosecution and defence of such proceedings, and…the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).’

Mazur says that anything properly to be described as litigation can only be conducted by an authorised person. The employment of a person who is not authorised in their own right by a person who is authorised, even under the latter’s supervision, cannot clothe the employee with authority.

This is not to say that an unauthorised person cannot play any role in litigation. They are entitled to carry on supporting activities. It should not be suggested that ‘paralegals’ cannot help with disclosure, preparing trial bundles, taking proofs of evidence or sitting in on conferences with Counsel. They cannot however take any step which amounts to conducting the litigation itself. In practical terms, this means that they cannot for example sign statements of truth, make statements in support of interim applications or submit those applications themselves. In short, an authorised person can in conducting litigation be assisted by, but cannot delegate to, an unauthorised person.

Of recent note is Halborg v Apple (2022) (unreported). It is often relied on to justify rights of audience, and it is often misquoted. The Solicitors Agent in Halborg was contracted to attend by LPC Law Limited. LPC Law Limited were actually on record for Apple via SCS - a trading style of that company - and providing litigation services. However, one needs to read the amended transcript to discover that nuance. So, it was not a typical advocacy-only Solicitor Agent arrangement. This limits its relevance to Solicitor Agents rights more generally.

Additionally the decision is not binding and has it’s own problems. It held that advocacy was in itself ‘assisting in the conduct of litigation’. With respect to the Circuit Judge, I fundamentally disagree. The Act makes it clear that ‘conducting litigation’ and ‘exercising rights of audience’ are two quite different things. In my view, the Act is aimed at Legal Executives (without authorisation in their own right) and what used to be termed ‘managing clerks’ who are employed or retained by a Solicitor to assist with litigation generally. Consequently, Halborg has significant limitations to its use in assessing these issues.

In HS (Chambers Proceedings: Rights of Audience) [1998] 1 FLR 868, 875 Lord Bingham spoke of the predecessor to the Act. He said at 875:

Conclusions on the appropriate test

Consequently, to be an Exempt Person, that individual must be;

assisting in the conduct of litigation (the First Condition),

acting under the instructions and supervision of an authorised litigator acting in proceedings (the Second Condition),

being heard in chambers (the Third Condition), and

which are not reserved family proceeding (the Fourth Condition).

The Exempt Person must meet all of these four criteria. These must necessarily be fact specific questions, and of course, every arrangement will be unique to a lesser or greater extent. But also note my omission of misleading nomenclature of Solicitor Agent. One must be an Exempt Person. The Venn diagram of Exempt Person and Solicitor Agent may phase closer or further apart as the facts of each arrangement are understood. But given the following reasoning, they are unlikely to align in any meaningful sense.

The First Condition

The First Condition is that the person in question must be assisting in the conduct of litigation. The Act as considered by Mazur sets out what that may be. ‘The conduct of litigation’ is defined by paragraph 2 of schedule 2 to the Act as ‘…the issuing of proceedings…the commencement, prosecution and defence of such proceedings, and…the performance of any ancillary functions in relation to such proceedings (such as entering appearances to actions).’

That must be more than advocacy alone. I respectfully disagree with that element of Halborg. Otherwise, the distinction between litigation and advocacy would vanish. It would become self-proving; anyone attending purporting to conduct advocacy would automatically be an Exempt Person by reason of undertaking that advocacy.

To meet the First Condition the Exempt Person must factually establish that they have assisted in the conduct of the litigation to a sufficiently meaningful degree.

The Second Condition

The Second Condition is to establish that the Exempt Person is working under the instructions and supervision of the authorised litigator in the proceedings. In my view, that is Lord Bingham’s ‘managing clerks’ model that was intended to be retained by Parliament. Factually, that must demand some nexus between the Exempt Person and the supervising solicitor conducting the litigation of a sufficient degree to approximate that traditional role of ‘managing clerk’ or equivalent.

The Third Condition

The Third Condition is that the relevant hearing is taking place in ‘chambers’. This is more difficult to define. The problem is that Parliament adopted the term ‘chambers’ in 2007 when it had become defunct in 1999 when the CPR was introduced. In ‘chambers’ is a term not defined by the Act and not recognised by the CPR. CPR r. 39.2 has done away with the CCR definition of in ‘court’ or in ‘chambers’. That definition was removed some 8 years before the Act.

It seems obvious to me that Parliament did not intend ‘chambers’ to refer to the type, size or geographic configuration of the room the hearing happens in. Nor must it matter whether it is in Private or Public. It must have been intended for a shorthand for a set of appropriate hearings.

On the one hand, it may have been Parliament intended ‘in chambers’ to mean any identified exceptions in the CPR/FPR where unqualified individuals are permitted to attend under the procedure rules. For example, small claims trials or Housing Officers in possession claims. However, it seems to me unlikely that Parliament would ever have included such an exception in this way. I would have expected Parliament to have more expressly delegated authority to the respective rules committee to specify any exceptions.

On the other hand, and more realistically, it seems to me Parliament must have intended to continue the commonly understood practice of solicitors sending their ‘managing clerks’. As such, adopting ‘in chambers’ as a shorthand. A shorthand for hearings of an administrative type and quality that would have been usually ‘in chambers’ under the old CCR.

That definition is unsatisfactory in its lack of clarity. Further, the lens of history makes the view cloudier. The jurisdiction shift of the District Judge role has removed many of the old CCR ‘in chambers’ hearings from the District Bench altogether. The very straightforward matters historically attended by the ‘managing clerks’ have been removed piecemeal from the District Judge’s role and are now handled by Legal Advisers or Proper Officers as an administrative function. Third party debt orders, charging orders, directions in small value small claims cases, and the like, now only come to the District Judge in unusual circumstances. So, the practice that Parliament intended to retain, has been gradually eroded from the Court arena in any event.

The Fourt Condition

The Fourt Condition is that they are not reserved family proceedings. There is no definition of ‘reserved family proceedings’ as regulations have not been introduced by the Secretary of State. So that adds nothing unless and until regulations are introduced.

Attendance at a Small Claim Trial

An alternative route is that anyone can attend and represent a party at a small claims trial. Under CPR 27APD.3 any party may have a Lay Representative. That is qualified by para3.2(2) requiring that a party may have a lay representative only if the lay party also attends the hearing under the Lay Representative (Rights of Audience) Order 1999. Additionally, attendance could be by an officer or employee of the Claimant company (none of which applies here).

As the White Book 2025 n 27.9.1 makes plain, ‘attendance by a [qualified] legal representative is attendance by the party for the purpose of this rule: Owen v Blackhorse Ltd [2023] EWCA Civ 325. Parties in person cannot give written notice of their no attendance but then attend the hearing by way of a lay representative appearing on their behalf.’ In Owen v Blackhorse attendance at first instance was by a qualified solicitor before DDJ Sandercock.

Interaction of CPR 27.9 and 27.11

Today the advocate also advanced an argument that, when read together, CPR 27.9 and 27.11 mean a party is present if the lay client is absent and an unqualified advocate is present. With respect, I struggled to follow that logic and cannot see that could ever be correct. CPR 27.9 allows a party to absent themself at a small claims trial and ask the court to deal with the hearing on their papers (the other party may or may not attend at their discretion). Equally, CPR 27.11 speaks of a re-hearing in absence. I am afraid I struggled to follow all the steps in the argument, because if that reading was correct it would justify the paradox of attendance by non-attendance.

Equally, the advocate referred me to Rouse v Freeman [2001] EWHC J1130-10 which in my view adds little. That simply says that a hearing may proceed if the party is represented by qualified lawyers but if the lay client is absent. In my view, nothing to do with any exemption to the rules about rights of audience.

EVIDENCE

Mr Boaten explained the basis of his instruction and how he came to appear today. He says he attends as a contractor (not employee) of Elms Advocacy Limited on an advocacy only basis; that is, he received a letter of instruction to attend today’s hearing to act as advocate, no more. It appears the Claimant, Vehicle Control Services Limited, have engaged the legal services of DCB Legal Limited. DCB are on record. DCB then contract with Elms Legal Advocates Limited to provide attendance at this hearing. Elms are not on record. At Elms, I am told there is a supervising solicitor. They sub-contract on an agency basis to ‘agents’ including Mr Boaten. Mr Boaten is an individual who has taken no steps in the litigation, other than receive his brief and attend today. Apart from acting as an advocacy agency passing on advocacy work, Elms Legal Advocates Limited has taken no part in any steps of the litigation.

Mr Boaten had no statement (as has been customary for other Solicitor Agent advocates) so I accept his submissions as accurate. I accept the uncontroverted description on what it says at face value for the purposes of this preliminary issue.

ANALYSIS

Taking the submissions from Mr Boaten in order.

Mr Boaten attempted the argument that if read together CPR r.27.9, 27.11 and Rouse v Freeman [2001] EWHC J1130-10, means an unqualified advocate can attend without a client. As I have accepted Vehicle Control Services Limited are represented by DCB Legal Limited who are on the record. DCB Legal Limited have contracted with Elms Legal Advocacy Limited who are not on record. They in turn subcontract on an agency basis to Mr Boaten.

CPR r. 27.9 relates to asking the court to hear a party’s case based on the evidence they have submitted and in their absence. CPR r. 27.11 relates to setting a decision aside when there is a failure to attend. I simply cannot draw those two issues together in the way Mr Boaten suggested.

Further Rouse v Freeman adds nothing to the issue of an unqualified advocate. It simply relates to a fairly uncontroversial issue, that a lay client need not attend if represented by someone holding rights of audience. Consequently, I cannot accept Basis 1 gives any grounds for Mr Boaten to hold rights of audience.

If Mr Boaten has attended as a Lay Representative for the purposes of the Lay Representative Order 1999 (supra.), a right to appear only arises when the lay client attends. No one from the Vehicle Control Services Limited has attended. Indeed, in the statement of Jake Burgess, Head of Legal for Vehicle Control Services, he indicates he may not attend. He gives a conditional CPR r. 27.9(1) Notice at para 35 of his statement (‘I may not be able to attend the forthcoming hearing. Should this be so…’).

It is questionable if r. 27.9(1) permits either such notice to be conditional, or whether a buried sentence at the end of the statement is adequate notice. Even if I accept that it is sufficient notice, his request to have the advocate heard in his absence is misconceived. As the White Book 2025 n 27.9.1 makes plain, ‘attendance by a [qualified] legal representative is attendance by the party for the purpose of this rule: Owen v Blackhorse Ltd [2023] EWCA Civ 325. Parties in person cannot give written notice of their no attendance but then attend the hearing by way of a lay representative appearing on their behalf.’ In Owen, the legal representative was a qualified solicitor.

Consequently, Mr Boaten cannot attend as a Lay Representative without attendance by his lay client. Basis 2 also fails.

First Condition; assisting in the conduct of litigation

Vehicle Control Services’ inhouse team and DCB Legal have solely taken all the steps in the litigation. Elms Advocacy Agency Limited have only acted as an advocacy agency sub-subcontracting to Mr Boaten. They have taken no step recognisable as ‘litigation’. It is clear that Mr Boaten has no connection to the Vehicle Control Services. Neither he nor the advocacy agency have undertaken any step in the litigation save attend on an advocacy only basis. Neither Mr Boaten nor the agency have written any letters, signed any documents, issued and proceedings, or taken any other steps in the litigation. Advocacy alone cannot be conducting litigation.

I find that Mr Boaten has not been assisting in the conduct of litigation. Mr Boaten’s claim to be an Exempt Person must fail at this first hurdle. Nevertheless, for completeness I will consider the other conditions.

Second Condition; under the instructions and supervision

The Second Condition relates to him acting under the supervision and instruction of the litigating solicitor. Mr Boaten is not under the instruction nor under the supervision of the litigating solicitor. That is someone at Vehicle Control Services, probably Mr Burgess if so, or someone at DCB Legal. The advocacy agency has undertaken no steps in the litigation. As such any supervision and instruction to Mr Boaten by the advocacy agency would not be relevant to the Second Condition. The instruction comes from Vehicle Control Services, to DCB Legal, to Elms Agency, then to Mr Boaten. These extra links in the chain takes us very far away from the traditional ‘managing clerk’ role.

Yet further, I struggle to see how there could be adequate supervision or instruction when there is no employer-employee relationship. Each job appears to be one off contract and there is no continuing or enduring relationship of employment or anything of the like. This arrangement is almost the opposite of Lord Bingham’s ‘managing clerk’ paradigm.

Consequently, Mr Boaten is not under the supervision or instruction of the authorised litigator.

Third Condition; in chambers

This hearing is a small claims trial. I would accept this type of hearing probably does fall into the small category of straightforward hearings likely to have been in chambers under the CCR.

Fourth Condition; reserved proceedings

This fourth condition is currently otiose as regulations have not been made to define reserved proceedings. It can be discounted as having relevance at this stage.

CONCLUSION

Consequently, it seems to me that to be an Exempt Person Mr Boaten must meet all of three qualifications. He only meets the Third Condition (in chambers) and cannot meet the First (assisting in litigation) nor Second Condition (supervision and instruction). The Fourth Condition does not apply. As such he does not have rights of audience, and he is not entitled to be heard as of right.

Nor may he attend as a Lay Representative. Nor does the slightly strained reading of CPR r.29.9 and 11 help.

I was not asked to grant a special right of audience. But had I been so asked, I would have been slow to do so. It is clear that granting a right of audience is a rare exception for fact specific reasons.

SENSE CHECK

From the review of the authorities, and in my view, it has become clear that the purpose of the exception was to continue the long running practice of managing clerks attending administrative hearings. It was not to drive a coach and horses through the requirements of qualification as a lawyer. This particular ‘Solicitor Agent’ model is most akin to a barrister’s chambers where junior barristers attend routine court hearing, albeit with unqualified advocates.

The requirements of legal qualification include not just professional insurance, and a base line of knowledge and experience. It is that each individual advocate in our adversarial system is constrained by the professional codes of conduct to act in a recognised manner. For example, not to mislead the court. That is backed by a regulatory framework of professional complaints, and enforcement by regulatory action; not just inhouse procedures. It was exactly the fact of direct supervision that ensured that the traditional managing clerk was equally constrained in Lord Bingham’s view.

Equally, it is to distort the purpose of Sch3, para 7 beyond recognition that the traditional role of an inhouse managing clerk undertaking the routine work before the District Judge be extended into a wholesale unqualified advocacy scheme.

That is the judgment of the Court.