I wasn’t going to write an article about this. I had my views about the interpretation of sch 3 Legal Services Act 2007 when I read the reserved decision of Vehicle Control Services Ltd v Langley [2026] EWCC, sitting in the County Court at Haverfordwest. However, I have had a few people contact me about it.
In particular, I focus on the points raised about Schedule 3 par 1 (7)(a) and (b). I do not comment on para 1(7)(c) regarding whether the matter is in chambers. This article also does not concern qualified advocates, advocates who come under the definition of a lawyer who can represent a party at a small claims trial as per PD27A para 3.1 or under the Lay Representatives (Right of Audience) Order 1999 – none of these were considered in the Judgment.
DJ Pratt was of the view that the advocate did not meet the criteria for Sch 3 Legal Services Act 2007 because they did not meet the following criteria:-
- (7)(a) – the person is an individual whose work includes assisting in the conduct of litigation.
- (7)(b) – the person is assisting in the conduct of litigation –
- Under instruction given (either generally or in relation ot the proceedings) by an individual to whom sub-paragraph (8) applies and
- Under the supervision of that individual
DJ Pratt found that the small claim trial would take place in chambers. I don’t intend to address that point.
The person is an individual whose work includes assisting in the conduct of litigation
DJ Pratt says, at paragraph 11 of his judgment, that the definition of litigation to be found in 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).’
He then says the following:-
42. Vehicle Control Services’ in house 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 any proceedings, or taken any other steps in the litigation. Advocacy alone cannot be conducting litigation.
43. 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.
Let us take Elms out of the equation for now. Let us imagine that at Haverfordwest, we did not have an advocate from Elms but an in-house paralegal from DCB Legal. The paralegal walks in and sits down, ready to present the case on behalf of VCS. DJ Pratt looks up and invites the paralegal to explain their right to appear.
DJ Pratt says neither Elms nor the advocate had written letters, signed any documents, issued any proceedings or any steps in the litigation. Is DJ Pratt saying that a paralegal at DCB who hasn’t done any work on the file cannot attend on behalf of the client even if they are being supervised? Are they expected to provide evidence to support that they have done work? Then comes the big question. DJ Pratt gives examples of what they could have amounted to assisting in litigation, but given Mazur, isn’t it more likely that those steps could have amounted to litigation?
I think that DJ Pratt has, as HHJ Backhouse suggested in Halborg v Apple, applied the definition in an incredibly narrow manner.
In my view, it cannot be limited to only individuals who have physically assisted in some way shape or form with the litigation. It would be perverse that an employee of the solicitors’ firm on record for the party would be under supervision for attending the hearing, but having not done any work at all on the file was deemed not to be assisting in the course of litigation.
DJ Pratt emphasises the importance of distinguishing between conducting litigation and advocacy. He is correct that they are two separate regulatory actions. However, assisting with litigation does not mean conducting mitigation. For example, attending a hearing on behalf of the principal solicitor, like a case management conference, counts as assisting the litigation because it helps move the case forward.
Under the supervision of that individual
DJ Pratt considered HS (Chambers Proceedings: Rights of Audience) [1998] 1 FLR 868 (which would have considered the Court and Legal Services Act 1990, with similar exemptions) and quoted the following:-
‘It appears to me that the plain object of s 27(2)(e) is to preserve the traditional right of solicitors’ managing clerks to conduct proceedings in chambers on behalf of the solicitors who employ them. Such managing clerks are traditionally men and women of great experience, often members of the Institute of Legal Executives. They can be relied on to observe the same principles of detachment, objectivity and professional duty as a qualified solicitor or barrister…
I am bound to say that this construction [as suggested] seems to me to fly in the face of the general principle in s 17 by extending rights of audience to an advocate subject to none of the usual constraints which bind an advocate employed or engaged by a solicitor and acting under his instructions in the ordinary way.’
It is that last sentence that stands out to me because I believe this is where DJ Pratt errs. In Re Pomeroy & Tanner [1897] 1 CH 284, Stirling J said the following:-
Let us look at it as a matter of principle. 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 exist 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, and the necessity occurred in this case, he may do 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.
While the client had a legal relationship only with the country solicitor and not with the London agent, any work performed by the London agent was legally considered part of the country solicitor’s work, and the solicitor remained fully responsible to the client for all of it.
Whilst Elms would not have a legal relationship with VCS, all work done by Elms would be treated as part of DCB’s work and DCB would have remained full responsible to hte client for all of it. It would also be the case that if costs were being assessed on a standard or indemnity basis, the costs to DCB would be claimed as profit costs and not a disbursement?
In Crane v Canons Leisure Centre [2007] EWCA Civ 1352, the Court of Appeal determined that the solicitors’ costs are determined by the nature of the work. They said if they delegate the work but retain supervision, and never relinquish responsibility, then those costs are those of the solicitor.
I return to Elms and DCB. DCB instructs Elms (a law firm regulated by CILEX). The responsibility of the work is never relinquished. Therefore, any work carried out by Elms must be under the specific instruction and control of DCB.
In my view if the authorised person within Elms supervises an unqualified advocate, the Elms authorised person is doing so under the control and responsibility of DCB. Therefore, supervision would be met.
Consideration
This goes back to my initial perspective on Halborg and how the Court of Appeal was able to see that the interpretation of sch 3 seemed ‘too academic’. It’s likely that we will come across various first-instance decisions and find ourselves in a ‘battle of the transcript’ situation again, since no appeal at the appropriate appellate level is expected to happen.
Information
Alec Hancock is a practising Barrister at Magdalen Chambers in Exeter. For instructions on matters, please contact Magdalen Chambers via clerks@magdalenchambers.co.uk or by telephone on 01392 285 200.
