Solicitors' Higher Rights of Audience Regulations

2007-07-13
 

The Solicitors' Higher Rights of Audience Regulations 2010 have been replaced on the 6 October 2011 by the SRA Higher Rights of Audience Regulations 2011 as part of the introduction of outcomes-focused regulation.

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The Solicitors' Higher Rights of Audience Regulations were amended on 1 September 2010 to reflect changes introduced by the SRA Qualified Lawyers Transfer Scheme Regulations 2010.

The Higher Courts Qualification Regulations 2000 were replaced on 1 April 2010 by the Solicitors' Higher Rights of Audience Regulations 2010.

 
 

Higher Courts Qualification Regulations 2000Solicitors' Higher Rights of Audience Regulations 2010

Made on the 13th day of July 2000 by the Council of the Law Society with the approval of the Lord Chancellor under Section 27 of the Courts and Legal Services Act 1990 and Section 2 of the Solicitors Act 1974, amended with the approval of the Lord Chancellor 28th October 2005 and 8th December 2006 and 5 December 2007, and amended with the approval of the Secretary of State November 2008.

Made on the 1st day of April 2010 by the Solicitors Regulation Authority with the approval of the Secretary of State under section 27 of the Courts and Legal Services Act 1990 and section 2 of the Solicitors Act 1974.

1. IntroductoryIntroduction

The purpose of these regulations is to establish a qualification for solicitors and registered European lawyers wishing to exercise extended rights of audience in the higher courts. The aim of the scheme is to ensure that they are competent to undertake advocacy in those proceedings in which they may exercise rights of audience in accordance with these regulations.

These regulations will come into force on such date as the Council may determine, on which date The Higher Courts Qualification Regulations 1998 ("the 1998 Regulations") shall cease to have effect.

Subject to regulation 10, in these regulations "higher courts advocacy qualification" shall mean one of the qualifications referred to in regulation 3 to exercise extended rights of audience in the higher courts.

In these regulations "comparable jurisdiction" shall include Scotland, Northern Ireland, Republic of Ireland and those jurisdictions listed in paragraphs 1 and 2 of the Schedule to the Qualified Lawyers Transfer Regulations 1990.

In these regulations "Legal Practice Course" and "continuing professional development year" shall have the meanings set out in the Training Regulations 1990.

In these regulations "the 1992 Regulations" shall mean The Higher Courts Qualification Regulations 1992.

In these regulations "registered European lawyers" shall mean persons registered with the SRA under the European Communities (Lawyer's Practice) Regulations 2000.

  • 1.1

    The purpose of these regulations is to ensure that solicitors and RELs wishing to exercise rights of audience in the higher courts of England and Wales are competent to undertake advocacy in those proceedings in which they may exercise rights of audience in accordance with these regulations.

  • 1.2

    These regulations will come into force on such date as the SRA may determine, on which date The Higher Courts Qualification Regulations 2000 ("the 2000 regulations") shall cease to have effect.

  • 1.3

    In these regulations:

    • "comparable jurisdiction" includes Scotland, Northern Ireland, Republic of Ireland and those jurisdictions listed in paragraphs 1 and 2 of the Schedule to the Qualified Lawyers Transfer Regulations 1990 together with all Recognised Jurisdictions as defined in the Qualified Lawyers Transfer Scheme Regulations, and from time to time published by the SRA;
    • "higher courts advocacy qualification" means, subject to regulation 6, one of the qualifications referred to in regulation 3 to exercise extended rights of audience in the higher courts;
    • "Legal Practice Course" and "continuing professional development" have the meanings set out in the Training Regulations1990;
    • "previous regulations" means either the Higher Courts Qualification Regulations 1992, the Higher Courts Qualification Regulations 1998 or the Higher Courts Qualification Regulations 2000;
    • "REL (registered European lawyer)" means an individual registered with the SRA under Regulation 17 of the European Communities (Lawyer's Practice) Regulations 2000; and
    • "SRA" means the Solicitors Regulation Authority;
    • "standards" means the Statement of standards for solicitor higher court advocates issued by the SRA and appended to these regulations.

2. Rights of audience

Under Section 31(2) of the Courts and Legal Services Act 1990, solicitors are deemed to have been granted rights of audience in all courts and in all proceedings.

By virtue of Regulations 6 and 11 of the European Communities (Lawyer's Practice) Regulations 2000, registered European lawyers are deemed to have been granted rights of audience in all courts and in all proceedings.

Subject to regulation 10, no solicitor or registered European lawyer is entitled to exercise any right of audience other than a right of audience of the type which solicitors had immediately before 7th December 1989 unless he or she holds a higher courts advocacy qualification under these regulations entitling him or her to exercise that right of audience.

  • 2.1

    A solicitor is authorised by the SRA to exercise rights of audience in the higher courts subject to the provisions of Rule 20.01(1)(a)(ii) of the Solicitors' Code of Conduct 2007 as amended.

  • 2.2

    An REL is authorised by the SRA to exercise rights of audience in the higher courts subject to the provisions of Rule 20.01(2)(a)(ii) of the Solicitors' Code of Conduct 2007 as amended.

3. Qualifications to exercise extended rights of audience

(1) The SRA may grant one of the following qualifications to a solicitor or registered European lawyer who meets the requirements of these regulations:

  • Higher Courts (All Proceedings) Qualification which shall entitle the solicitor or registered European lawyer to exercise rights of audience in all proceedings in the higher courts.
  • Higher Courts (Civil Proceedings) Qualification which shall entitle the solicitor or registered European lawyer to exercise rights of audience in all civil proceedings in the higher courts including judicial review proceedings in any court arising from any civil cause.
  • Higher Courts (Criminal Proceedings) Qualification which shall entitle the solicitor or registered European lawyer to exercise rights of audience in all criminal proceedings in the higher courts and judicial review proceedings in any court arising from any criminal cause.

subject always to the rules and principles of professional conduct applicable to solicitors and registered European lawyers.

(2) Those solicitors and registered European lawyers who have been granted the Higher Courts (All Proceedings) Qualification, the Higher Courts (Civil Proceedings) Qualification and the Higher Courts (Criminal Proceedings) qualification by the Society under the 1992 Regulations and the 1998 Regulations shall be deemed to have been granted the equivalent qualification under paragraph (1) of this regulation.

  • 3.1

    The SRA may grant one or both of the following qualifications to a solicitor or REL who meets the requirements of these regulations:

    • Higher Courts (Civil Advocacy) Qualification which entitles the solicitor or REL to exercise rights of audience in all civil proceedings in the higher courts, including judicial review proceedings in any court arising from any criminal cause;
    • Higher Courts (Criminal Advocacy) Qualification which entitles the solicitor or REL to exercise rights of audience in all criminal proceedings in the higher courts and judicial review proceedings in any court arising from any criminal cause;
    subject always to the rules and principles of the Solicitors' Code of Conduct 2007.
  • 3.2

    Those solicitors and RELs who have been granted a higher courts qualification by the Law Society or the SRA under the previous regulations shall be deemed to have been granted the equivalent qualification or qualifications under paragraph 3.1 above.

4. Qualifying to exercise extended rights of audience

(1) Solicitors and registered European lawyers applying for one of the higher courts advocacy qualifications must demonstrate to the satisfaction of the SRA that they are competent to undertake advocacy in the proceedings in relation to which they have applied by satisfying the SRA:

  • Development route

    (a) that they have undertaken training, assessment and experience in accordance with Regulation 5; or

  • Accreditation route

    (b) that they have practised as lawyers for at least three years and that they have at least three years' appropriate experience of litigation in the higher courts of England and Wales or of a comparable jurisdiction or of a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC, and have satisfied any conditions and have undertaken assessment and any further steps specified by the Society under Regulation 6; or

  • Exemption route

    (c) that they have practised as lawyers for at least three years and that they have appropriate experience of the higher courts of England and Wales or of a comparable jurisdiction or of a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC and are suitably experienced and qualified as provided for by regulation 7; or

  • Qualifications gained in another jurisdiction

    (d) that they have appropriate qualifications and have undertaken any further step(s) specified by the Society under regulation 8.

(2) Before being granted a higher courts advocacy qualification applicants must:

  • (a) supply the Society with at least one reference as to the nature and extent of their litigation and advocacy experience from those whose standing as a member of the judiciary, the court service or the legal profession would enable them to offer informed opinions; and
  • (b) attend for interview if required to do so by the Society.

(3) Paragraphs (1) and (2) of this regulation do not apply to those persons to whom regulation 10 applies.

  • 4.1

    Solicitors and RELs applying for a higher courts advocacy qualification must demonstrate that they are competent to undertake advocacy in the proceedings in relation to which they have applied by:

    • 4.1.1

      successfully completing assessments prescribed by the SRA; or

    • 4.1.2

      having gained an equivalent qualification in a comparable jurisdiction or a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC and undertaken any further step(s) as may be specified by the SRA under regulation 5.

  • 4.2

    The SRA will issue standards against which the competence of solicitors and RELs applying for a higher courts advocacy qualification and exercising those rights of audience conferred by the qualification awarded will be assessed. The standards will be appended to, but do not form part of these regulations and may be amended from time to time by the SRA.

5. Development routeQualification gained in another jurisdiction

(1) The Higher Courts (All Proceedings) Qualification may be granted to solicitors and to registered European lawyers who have:

  • (a) successfully undertaken training and assessment in procedure, evidence and ethics applicable to the higher courts, as specified by the SRA; and
  • (b) successfully undertaken training and assessment in advocacy skills applicable to the higher courts, as specified by the SRA; and
  • (c) had such experience of litigation and advocacy over a period of 12 months as the SRA shall specify and evidenced in such a way as the Society shall prescribe.

(2) In the case of a solicitor, the training, assessment and up to six months of the experience set out in regulation 5(1) may be undertaken before admission as a solicitor provided that:

  • it is undertaken after successful completion of the Legal Practice Course; and
  • the experience requirement is satisfied during a training contract or following admission as a solicitor; and
  • at least six months of the experience requirement takes place following admission; and
  • the training, assessment and experience set out in regulation 5(1) take place in the five years preceding the application.
  • 5.1

    A solicitor or REL may apply for a qualification to exercise rights of audience in all proceedings in the higher courts relying on qualification(s) gained in any comparable jurisdiction or a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC.

  • 5.2

    Each application will be considered on its merits by the SRA which may require the applicant to undertake such steps as it may specify in order to gain the qualification.

7. Exemption routeConversion provision for RELs

(1) A higher courts advocacy qualification in those proceedings in which they are seeking to exercise rights of audience may be granted to those who have practised as lawyers for at least three years and have satisfied the SRA that they have advocacy or judicial experience in the higher courts of England and Wales or of a comparable jurisdiction or of a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC and are suitably experienced and qualified to exercise rights of audience before the higher courts in the proceedings in which the qualification for which they have applied would entitle them to appear.

(2) Solicitors or registered European lawyers who fail to satisfy the SRA in accordance with paragraph (1) above may have their application considered under Regulation 6.

(3) Applications under this regulation must be received by the SRA before 31st December 2009 or before the coming into force of the Solicitors' Higher Rights of Audience Regulations 2009 which ever is the earlier.

Any REL who is granted a qualification listed in regulation 3.1 shall keep that qualification upon being admitted as a solicitor.

8. Qualification gained in another jurisdictionAssessments

(1) After 31st December 2006, a solicitor or registered European lawyer may apply for a qualification to exercise rights of audience in all proceedings in the higher courts relying on qualification(s) gained in any comparable jurisdiction or a jurisdiction listed in Article 1 of the EC Parliament and Council Directive 98/5/EC.

(2) Each application will be considered on its merits by the SRA which may require the applicant to undertake such steps as it may specify in order to gain the qualification.

  • 8.1

    The SRA shall:

    • 8.1.1

      issue guidelines and standards for the provision of competence assessments in higher courts civil advocacy and higher courts criminal advocacy;

    • 8.1.2

      validate and authorise organisations to provide assessments and

    • 8.1.3

      monitor the provision of assessments.

9. Former barristers, etc

(1) This regulation applies to solicitors who were admitted, or to registered European lawyers who were so registered, prior to the coming into force of Section 31C of the Courts and Legal Services Act 1990 and who, at the time of their admission or their initial registration, had at any time been barristers or European lawyers registered with the General Council of the Bar under the European Communities (Lawyer's Practice) Regulations 2000-

  • (a) who had, and were entitled to exercise, rights of audience in all courts and in all proceedings; and
  • (b) whose entitlement to exercise those rights of audience was not a provisional or a temporary one; and
  • (c) who were not banned from exercising any of those rights of audience as the result of disciplinary proceedings, unless, having been so banned, the ban was subsequently lifted.

(2) Upon application, a higher courts advocacy qualification in those proceedings in which they are seeking to exercise rights of audience may be granted to solicitors or registered European lawyers who:

  • (a) are persons to whom this regulation applies; and
  • (b) unless the SRA is satisfied that they have recent relevant advocacy experience, have undertaken such steps as the SRA may specify.

Solicitors or registered European lawyers who have gained a higher courts advocacy qualification under regulation 3.1 and 5.1 of these regulations, or who are exercising any right of audience in the higher courts by virtue of any exemption they have under Regulation 6, are subject to the continuing professional development requirements in the Training Regulations 1990. They must, in complying with these requirements, undertake at least five hours continuing professional development relating to the provision of advocacy services in the higher courts in each of the first five continuing professional development years following the grant of the qualification or (in the case of solicitors or registered European lawyers who exercise any right of audience in the higher courts by virtue of any exemption under regulation 5.1) the date of their first exercise of the right.

10. Exemptions under section 31C of the Courts and Legal Services Act 1990Applications and reviews

With respect to his or her entitlement to exercise a right of audience before a court in proceedings of a particular description, a solicitor or registered European lawyer is exempt from the requirements of Regulation 2(3) if he or she is a person to whom, in respect of that court and that description of proceedings, Section 31C of the Courts and Legal Services Act 1990 applies. By virtue of that section he or she shall have a higher courts advocacy qualification in respect of that entitlement.

  • 10.1

    An application under these regulations shall be made by a solicitor or REL, shall be made on the form prescribed by the SRA and shall be accompanied by the appropriate fee fixed from time to time by the SRA.

  • 10.2

    A solicitor or REL shall not apply for a higher courts advocacy qualification until one of the requirements of regulation 4 has been met.

  • 10.3

    A solicitor or REL applying for a higher courts advocacy qualification may within 28 days of receiving notification of the SRA's decision ask for the decision to be reviewed.

  • 10.4

    A solicitor or REL may not apply to the SRA for a review of a decision by an assessment provider that he or she has failed an assessment.

11. Transitional arrangementsConversion provision for registered European lawyers

Any registered European lawyer who is granted any of the qualifications listed in regulation 3(1) shall keep that qualification upon being admitted as a solicitor.

  • 11.1

    A solicitor or REL who has gained a certificate of eligibility to take the Law Society's Test or Tests in Procedure and Evidence before the date of commencement of these regulations under previous regulations, but has not yet been granted a higher court advocacy qualification, will have to undertake the prescribed assessments provided for by these regulations no later than two years after they come into force, after which date the certificate of eligibility will cease to be valid.

  • 11.2

    A solicitor or REL who has passed the Test or Tests in Advocacy provided under previous regulations before the date of commencement of these regulations will be treated as having completed the advocacy assessments under regulation 4.1 of these regulations.

  • 11.3

    A solicitor or REL who has applied to the SRA before the commencement of these regulations under regulations 6 or 7 of the Higher Courts Qualification Regulations 2000, but has not been granted a higher courts advocacy qualification, must complete his or her application under those Regulations no later than twelve months after they come into force. After that date such application will be terminated and any future application must be made in accordance with these regulations. Alternatively, s/he may withdraw their application under the 2000 regulations, and submit a new application after the commencement date of the 2009 regulations.

  • 11.1

    A solicitor or REL who at the date on which these regulations come into force has undertaken in part the requirements specified in regulation 5 of the Higher Courts Qualification Regulations 2000 (the development route) and who has not been granted the Higher Courts (All Proceedings) Qualification, may either:

    • (a) within 24 months of the coming into force of these regulations, complete the requirements set out in regulations 5(1)(a) and 5(1)(b) of the Higher Courts Qualification Regulations 2000, which will be treated as meeting the requirements of regulation 4 of these regulations, and may be granted both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification; or
    • (b) apply for a higher courts advocacy qualification in accordance with these regulations.
  • 11.2

    A solicitor or REL who at the date on which these regulations come into force has applied to the SRA under regulation 6 of the Higher Courts Qualification Regulations 2000 (the accreditation route) but has not been granted a higher courts advocacy qualification, may either:

    • (a) within 24 months of the coming into force of these regulations complete the requirements set out in regulations 4(1)(b) and 6 of the Higher Courts Qualification Regulations 2000, which will be treated as meeting the requirements of regulation 4 of these regulations, and may be granted one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification; or
    • (b) may withdraw his or her application under the Higher Courts Qualification Regulations 2000 and apply for one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification accordance with these regulations.
  • 11.3

    A solicitor or REL who at the date on which these regulations come into force has applied to the SRA under regulation 7 of the Higher Courts Qualification Regulations 2000 (the exemption route) but has not been granted a higher courts advocacy qualification, either:

    • (a) will be treated as meeting the requirements of regulation 4 of these regulations, provided he or she complies within 12 months of the coming into force of these regulations with regulation 7(1) of the Higher Courts Qualification Regulations 2000, and may be granted one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification; or
    • (b) may withdraw his or her application under the Higher Courts Qualification Regulations 2000 and apply for one of or both the Higher Courts (Civil Advocacy) Qualification and the Higher Courts (Criminal Advocacy) Qualification in accordance with these regulations.
  • 11.4

    The SRA has the power to waive in writing any of the provisions of regulation 11 and to place conditions on and to revoke such waiver.

12. Applications and appeals

(1) An application under these regulations shall be made on the form prescribed by the SRA for the purpose and shall be accompanied by the appropriate fee fixed from time to time by the SRA.

(2) A solicitor or registered European lawyer applying for a higher courts advocacy qualification who is aggrieved by a decision of the Society under regulations 5, 6, 7, 8 or 9 may:

  • (a) within 28 days of receiving notification of the decision ask for the decision to be reviewed. The SRA shall review the decision as soon as is reasonably practicable and notify the applicant of the outcome; and
  • (b) within three months of receiving notification of the outcome of the review, appeal to the Master of the Rolls who may:
  • affirm the decision of the SRA; or
  • give directions as to how the SRA should exercise its functions under these regulations, including making directions to the SRA to grant a higher courts advocacy qualification.

(3) No appeal lies to the SRA or the Master of the Rolls against a decision by an assessment or training provider that an applicant has failed an assessment.

(4) Regulation 12(2)(b) will cease to have effect on the coming into force of amendments to the Solicitors Act 1974 arising from paragraph 30 of schedule16 of the Legal Services Act 2007.

13. Continuing professional development

(1) Solicitors or registered European lawyers who have gained a higher courts advocacy qualification under regulations 5 to 9 of these regulations, or who are exercising any right of audience in the higher courts by virtue of any exemption they have under Regulation 10, are subject to the continuing professional development requirements in the Training Regulations 1990. They must, in complying with these requirements, undertake at least five hours continuing professional development relating to the provision of advocacy services in the higher courts in each of the first five continuing professional development years following the grant of the qualification or (in the case of solicitors or registered European lawyers who exercise any right of audience in the higher courts by virtue of any exemption under regulation 10) the date of their first exercise of the right.

(2) If a solicitor or registered European lawyer does not work for any period in legal practice or employment in England and Wales this requirement is suspended for that period.

14. Waiver

In any particular case the SRA has power to waive in writing any of the provisions of these regulations and to revoke such waiver.

15. Transitional arrangements

(1) Solicitors and registered European lawyers who have gained a certificate of eligibility to take the Society's Test or Tests in Procedure and Evidence before the date of commencement of these regulations under regulation 6 of the 1992 Regulations or Regulation 6 of the 1998 Regulations, but have not yet been granted a higher court advocacy qualification, will have to undertake the training and assessment provided for by the development route under regulation 5(1)(a) and (b) of these regulations.

(2) Solicitors and registered European lawyers who have successfully passed the Test or Tests in Procedure and Evidence before the date of commencement of these regulations will be treated as applying under Regulation 6 of these regulations and have to undertake the advocacy assessment specified by the Society under Regulation 6(1)(d) of these regulations and comply with any other steps and conditions specified by the Society.

(3) Solicitors and registered European lawyers who have applied to the Society before the commencement of these regulations under Regulation 4 of the 1998 Regulations but have not been granted a higher courts advocacy qualification shall be regarded as having applied under Regulation 7 of these regulations.

(4) Solicitors and registered European lawyers who have applied to the SRA before the commencement of these regulations under Regulation 5 of the 1998 Regulations shall be regarded as having applied under Regulation 6 of these regulations.