Halborg v Apple: Why I believe it was correct regarding supervision element of the sch 3 Legal Services Act 2007 exemption

I actually find the topic of rights of audience and the exceptions to be very interesting. Despite a significant number of fee earners and county court advocates relying on these exemptions, there is no binding authority and the Court of Appeal specifically refused to deal with the issue as being academic.

Whilst Halborg v Apple has gone a long way to assist all on the topic, it is a Circuit Judge’s opinion in the County Court. At the very least, being an appeal and considering details submissions on the issue means that it has some weight.

The particular issue I want to discuss is the second limb of the schedule 3 para (7) of the Legal Services Act 2007 exemption which is that the person, who is seeking the exemption is assisting in the conduct of litigation under instructions given by an individual to whom sub-paragraph (8) applies, an under the supervision of that individual.

I think Judge Backhouse was correct and it can apply to advocates who are not in-house (county court advocates)/

What did HHJ Backhouse in Halborg say on the matter?

In this particular case, the Solicitors for the relevant party were SCS Law (the litigation trading name of LPC Law) and the county court advocate was instructed by LPC Law. So for all intents and purposes, those instructing and supervising were one and the same. This is very unusual but, I will explain in due course why I say it does not matter if the instructing solicitors and those arranging the advocacy are two different law firms.

Judge Backhouse was of the view that the description of supervision given included elements that were more in line with the definition of training. She relied on the Oxford English Dictionary which defines ‘supervision’ as ‘the action or function of overseeing, directing, or taking charge of a person, organisation, activity, etc.’  

She said that LPC had a system in place to oversee and direct its advocates and ensure their competence. Their advocates receive significant initial and ongoing training, were observed in court, and their performance is monitored through reports to LPC. It is not necessary for the supervising Solicitor to personally supervise every activity of every advocate as long as LPC had a system in place for matters requiring the supervising Solicitor’s attention. Judge Backhouse further said that the Court should not enquire into the adequacy of supervision provided by solicitors to advocates; that is a regulatory function. 

How can this function when the instructing Solicitor and the Solicitors providing the advocacy are not the same?

There was no further elaboration on how the supervision point applies when the instructing solicitor and the solicitors providing the advocacy were not same solicitors.

I am of the view that supervision passes from the instructing solicitors to the advocacy solicitors. It will assist if you treat the term ‘Solicitor’s Agent’ not the advocate that turns up at Court, but the law firm who are instructed to arrange for that advocate.

In Re Pomeroy & Tanner [1897] 1 Ch 284 the Court found that work undertaken by a solicitor agent was not a disbursement but was considered to be profit costs of the instructing solicitor:-

“It is well settled that between the client and the London agent of the country solicitor there is no privity. The relationship of solicitor and client does not extend between the client and the London agent. What is done by the London agent is part of the work done by the country solicitor for the client. The country solicitor does or may do part of the work personally. He does or may do part of his work through clerks whom he employs in the country. Or, if necessary… he may do the part of his work through a London agent. But as between the country solicitor and the client, the whole of the work is done by the country solicitor. It follows, therefore, that the items which make up the London agent’s bill are not mere disbursements, but are items taxable in the strictest sense as between client and the country solicitor, just as much as items in respect of work done by the country solicitor personally, or by the clerk whom he employes in the country”.

I would say that this concept applies to the principle of advocacy supervision. In the above case, the country solicitor is the instructing solicitor and the London solicitor is the agent. As per the above High Court authority, work done by the London solicitor is treated as work done by the country solicitor.

Solicitor agency is not the instruction of individual solicitors, but firms. So the work done by the London solicitor firm is treated as the country solicitor firm. If this is correct, then the supervising solicitor at the London firm would be treated as an extension of the country solicitor firm. Whilst the country solicitors would have a claim against the London solicitors for any negligence on their part, the buck, in terms of the client, stops with the country solicitors.

It is important to note that “just as much as items in respect of work done by the country solicitor personally, or by the clerk whom he employs in the country” refers to the proposition that the country solicitor would supervise the non-qualified fee earner who would then be able to rely on the exemption under sch 3 Legal Services Act 2007.

Therefore, why would the work carried out by the London solicitor, supervising the non-qualified fee earner, be treated any different than any other work under the agency agreement. This premise was also indirectly acknowledged by Judge Backhouse:-

“It also appears to be the case, as set out in the Law Society guidance and the notes to the White Book, that even before the 1990 Act rights of audience in chambers extended to independent contractors instructed by solicitors, as well as to those employed by solicitors”.

Conclusion

It is my view that the sch 3 exemption would encompass the circumstance where the solicitors on records instruct another law firm that conducts the advocacy. The instructing solicitors have to treat the work done by the advocacy solicitors as their own.

If, for example, a solicitor or CILEX advocate at the advocacy firm undertakes the advocacy, then they are not relying on the sch 3 exemption. However, their fees are treated as profit costs of the instructing solicitors. It is part of the work of the instructing solicitor.

The supervision then comes from the supervising solicitor (or CILEX Lawyer if they have practice rights in civil litigation) within the advocacy firm. It is as if they actually work in the instructing solicitors’ firm and are supervising a non-qualified fee earner so they can exercise the right of audience under sch 3.

This works with advocacy agency firms such as Quest Legal Advocates and LPC Law, which are SRA-regulated law firms. Judge Backhouse said the level and adequacy of the supervision is not a question for the sch 3 exemption; that is a regulatory issue for the firm’s regulator (SRA, CILEX Regulation, BSB, et al.). Most importantly, it means the work conducted by the advocates is protected by either the PII of the advocacy firm or potentially the instructing firm (albeit, more likely the former save for claims brought by the client against the instructing solicitors.

Information 

AJH Advocacy Limited, a Limited Company which is regulated by the Bar Standards Boards (entity number 190758), ceases trading on the 12th January 2026.

From the 12th January 2026 and onwards, Alec Hancock will practice as a Barrister at Magdalen Chambers in Exeter. For instructions on matters on or after 12th January 2026, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.