Advocates without solicitors is an important step

ON 22 August, the Dean of the Faculty of Advocates issued a ruling to the membership. The ruling, entitled “Appearance of Counsel without an Agent”, conceals a very significant change to the practice of law at the Scottish Bar, even though it only applies to civil cases.

An Advocate tries on her wig before going to court. Picture: Ian Rutherford

Compass Chambers sees this ruling as an important development that will benefit not only the Bar, but solicitors and the public alike.

Until now, the general rule in Scotland was that any advocate appearing in court had to have a solicitor “instructing” him or her by sitting in court next to or behind that advocate. Often the instructing “agent” would be an individual from a solicitor’s firm who knew little or nothing of the case, but the requirement was fulfilled. Of course, there were also many instances where the solicitor was wholly familiar with the case and provided excellent support and assistance to counsel.

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By contrast, in England for some years now barristers can and do appear in courts alone – and that is especially so in the lower courts. Barristers are often sent out to far-flung district and county courts on their own; deal with the case; and then e-mail the solicitor with confirmation of what happened. This new ruling brings Scotland into line with England.

The Bars in both Scotland and England hold themselves out to be specialist pleaders in court. If anything, this ruling advances that claim by seeking to identify the differences between solicitors and advocates. It implied that Scotland’s Bar is the “go to” place for specialised and competent court advocacy.

It is hoped that the ability of advocates to appear in court without a solicitor present with them will allow Scotland’s Bar to continue to be a “referral” Bar – where counsel are viewed as the experts that solicitors would wish to instruct.

Equally, it will allow solicitors to concentrate on the administrative side of the work at which they excel. This has always been the rationale for a split legal profession in Scotland (and indeed the rest of the UK).

There is no doubt that this change is one that can benefit the Bar as a whole, and the individual advocates who are members of faculty.

But there is another important benefit that is of wider public importance. A reduction in unnecessary cost can only be of benefit to the clients who ultimately pay for a service. If it is not necessary for a solicitor to be present with counsel in court, this saving in cash terms can only be good for making access to justice more affordable.

Fast communication between solicitors and counsel can inevitably allow advocates to be contacted by solicitors at short notice, for fees to be transparent to the clients and above all to permit good quality advocacy at an affordable price.

When I started at the Bar in 1988, it was common for two or three judges to be hearing short applications in different courts on the motion roll. When waiting in line, often with another ten counsel, solicitors would regularly pass further instructions to the first advocate in the queue, so that they could return to their office promptly.

But progressive changes over the years have resulted in such motion courts disappearing, thus depriving very junior counsel of the opportunity to cut their teeth and to impress solicitors.

Major reforms are about to take place following the Bill spawned by Lord Gill’s Review. These reforms are aimed at making justice more efficient for the public, and far more cases being heard in the sheriff courts in Scotland. The Ruling by the Dean (sanctioned by Lord Gill, the Lord President) will allow advocates to establish themselves as the obvious court pleaders in that new regime and in the spirit of the Gill Reforms.

It will also provide an opportunity for newly called advocates to step in to cases where usually a solicitor would have to take time out of his office diary to attend court, perhaps with a lot of waiting that cannot be charged out to clients on a reasonable basis.

The ruling appears to be designed to allow this facility to be used; there is no compulsion to do so, and it hardly likely to be suggested that if the traditional team of solicitor and counsel are used that is in any way unreasonable.

That said, this innovative step will be worth monitoring.

• Andrew Smith QC is a member of Compass Chambers, a stable of advocates, and is also a member of Crown Office Chambers in London