Litigation: Hearing aid

Solicitors must be given greater freedom to take their clients’ cases all the way to the High Court. By Simon Davis

Restrictions are unreasonably imposed on the freedom of clients to choose a solicitor to act as their advocate in court. Those restrictions should be removed.

A litigation solicitor can appear at employment tribunals where livelihoods are at stake; in arbitrations with billions of pounds at issue; at regulatory hearings on which the futures of businesses can depend; in county courts right up to trial; and in the High Court on interlocutory hearings, including strike-outs and applications for summary judgment, irrespective of the amount and complexity of the claims.

The same litigation solicitor, however, must step aside in the High Court the moment a hearing is deemed to be in ‘open court’ rather than in chambers. The same solicitor can appear in certain interlocutory hearings in certain divisions, but not in others, and certainly cannot appear at trial or in any of the appellate divisions.

By contrast, a barrister fresh from pupillage, with little advocacy experience, can appear at every level right up to the House of Lords. To achieve the same position, a solicitor must spend years building up a body of experience and must pass separate evidence and advocacy courses before becoming a solicitor advocate. Even then the solicitor advocate must dress differently and be clearly distinguishable in court from barristers.

This distinction is frequently perceived as being anomalous, unfair and anticompetitive. It can also lead to the unnecessary duplication of costs, where a client is compelled to hire both barristers and solicitors.

Reform drive

Against this background it is unsurprising that the Solicitors Regulation Authority (SRA) issued a consultation paper this year asking whether the current restrictions on solicitors are justifiable in the interests of the public or the proper administration of justice. The SRA put forward three possible options for reform:

•maintaining the existing position, but with a revised system of accreditation for solicitor advocates;

•relying on the professional duty on solicitors to act only within their competencies, but offering a non-mandatory accreditation scheme; and

•relying on the professional duty only.
However, these restrictions are unjustified.

Barristers and solicitors upon qualification should have equal rights of audience without any mandatory or voluntary accreditation schemes going forward (but with increased advocacy training for solicitors prior to qualification).

Client needs

Looked at from the point of view of the clients, there is a number of reasons why they would want their chosen litigation solicitors to appear in court. Indeed, in the majority of other jurisdictions in the world this choice can be made without regulatory impediment.

The solicitor will understand the facts of the case better than anyone else, often including the client, since the solicitor will have spoken to a wide range of representatives within the client organisation and possibly to third-party witnesses who will never have spoken to the client. The solicitor will be thoroughly familiar with the documents and their inter-relationship with the relevant witness. The solicitor will understand intimately the business of the client and the way in which the relevant sector operates and will be able to put the legal issues in context.

Historical restrictions

Indeed, were a system of justice being developed now from a blank sheet of paper, it is unlikely that the designer would put together a system that required solicitors to hand over the case to professional advocates at certain points in the case.

But we are not starting with a blank sheet of paper. We are starting hundreds of years down the line. For historical reasons there are restrictions on the rights of solicitors to appear in court and we have a high-quality cadre of professional advocates that fulfils that function.

Many barristers are top class, can convey a point or deal with the court’s concerns in a way that is highly impressive and are the match of any advocate in the world. They have the time to devote to the preparation of a case for a contested hearing, whereas the solicitors are often closeted with the clients seeking to resolve the case by way of settlement.

It follows that there is nothing wrong with the traditional model of skilled barristers appearing in court with skilled instructing solicitors. For many clients, particularly in large commercial cases, this will still be the preferred choice. Others, however, should be able to ‘mix and match’ – for example, having a QC leading a solicitor, a solicitor leading a junior barrister, or more generally having a mixed team sharing various tasks, irrespective of whether or not a lawyer is a barrister, solicitor or solicitor advocate.

The client should be able to choose the model that suits each particular case. The choice should not be forced on the client by external regulation.

Woolf repercussions

Separately, the effect of the Woolf reforms has been to reduce substantially the amount of interlocutory hearings and to ensure that those hearings that do take place are of such importance that they frequently require the attendance of the senior advocate on the case. This means that the numbers of advocacy opportunities for the junior bar have diminished, and likewise the potential opportunities for solicitor advocates.

With all these points in mind it is understandable that the number of solicitor advocates on their feet in the High Court remain relatively few. Indeed the fact that many solicitor advocates do not utilise fully their existing rights of audience suggests strongly that if regulatory barriers were to be reduced there would be no headlong rush to the courts.

But whether or not clients do want solicitors to appear as their advocate is a choice that should be dictated by the needs of the client, the needs of the case and the abilities of the solicitor, not by regulation.

Simon Davis is president of the London Solicitors Litigation Association