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14 February 2014
Obtaining a Higher Courts Qualification Certificate has been made akin to scaling the north face of the Eiger. That is quite deliberate despite the fact that the undoubted wish of Parliament was to ensure that solicitors appeared in criminal and civil higher courts.
The Higher Courts Qualification Regulations of 1992 are a masterpiece of ambiguity and are no tribute to any drive towards clear English. They repay close study, however, and in view of the fact that there has recently been a decision by the Master of the Rolls on their interpretation, it seems appropriate to have a closer look at the regulations.
Three stages are involved in obtaining a Higher Courts Qualifications Certificate. First, a Certificate of Eligibility must be obtained. That is followed by the need to undergo a Test in Evidence and Procedure, and the third stage is to take the course.
The recent decision by the Master of the Rolls addressed the issue of what was involved in obtaining exemption from the test and the course.
There are various grounds for exemption, of which one is recent Higher Court advocacy. This plainly applies in the main to former barristers, though the solicitor who has exercised rights of audience in those Crown Courts where he has rights will also have a chance under this.
Apart from that possibility, judicial experience is another way forward. Plainly, to preside over a court without having rights of audience in it is nonsensical. Yet that is the situation we are faced with.
The third possibility is to have a combination of advocacy and judicial experience either in England and Wales or elsewhere.
This last classification represents the applicant's totality of advocacy experience and takes into account his experience as an advocate other than that of a Higher Court advocate. However, as the Master of the Rolls pointed out in the recent case: "...Higher Court advocacy must weigh heaviest in the balance..."
The applicant in this case was admitted as a solicitor in 1956 and had been constantly engaged in practice in Magistrates' Courts for 36 years. He had a breadth of experience rivalling that of any busy solicitor advocate and he applied to the Law Society for the Higher Courts Criminal Proceedings Qualification. This was refused by the Higher Courts Qualifications Casework Committee and their decision was upheld on appeal to the Appeals Casework Committee.
Not unnaturally the solicitor felt aggrieved.
The case is interesting because his experience represents the norm for most solicitors. He felt, probably quite correctly, that his total advocacy experience should have brought him within the exemption from both the test and the course referred to in paragraph 1(iii) of Schedule 1 to the Higher Courts Qualification Regulations 1992. But in the Appeals Casework Committee it did not.
Eventually his case arrived before the Master of the Rolls.
He took the view, and his judgement is worth reading given that it displays the wisdom of Solomon, that while his advocacy experience was broad, it did not cover the Higher Courts experience that was required.
Nevertheless, it was sensible to take a pragmatic approach to such matters. The decision was to say that the applicant had to undergo the course but was exempted from the test. A fair compromise in the circumstances, although the course is probably beyond the pocket of many solicitors.
The facts of this case show the way forward for the majority of solicitors - it will not be an easy one.
In the end the spirit of the new regulations will triumph but that will be despite rather than because of any common sense displayed on the way.