Authorisation

In order to conduct litigation lawyers need two forms of authorisation. First, since it is one of the six reserved activities set out in the Legal Services Act 2007 (LSA 2007), they must be authorised to conduct litigation.² A person may, however, be

¹ C Dickens, Bleak House (London, Bradbury and Evans, 1853) chs 1 and 39.

² LSA 2007, ss 12(1)(b).

exempt from being an authorised person in relation to the conduct of litigation^[2709] if, for example, they have been granted a right by a court in relation to specific proceedings.^[2710] Secondly, at common law, they need special authority to issue proceedings in the cli­ent’s name^[2711] or to take part in proceedings on the client’s behalf.^[2712]

Because litigation is a reserved activity, a litigator must belong to a profession that can authorise a member to conduct litigation. The Courts and Legal Services Act 1990 recognised only the Law Society’s right to regulate litigators, but the door was left open for other professions to come forward.^[2713] Under the LSA 2007, six of the approved regulators are regulators for the conduct of litigation. These are the regula­tors for solicitors, barristers, legal executives, patent attorneys, trade mark attorneys and costs lawyers. However, only solicitors automatically gain rights to conduct litiga­tion in all courts on qualification.

The Bar experimented with public access to barristers for conducting litigation in 2004. Since January 2014, however, barristers can gain an extension to their practising certificate to conduct litigation. Importantly, because it will enable them to continue to focus on advocacy, they can share premises with non-barristers for that purpose. In order to gain the extension, barristers need to convince the Bar Standards Board that they have appropriate systems to conduct litigation, the skills and knowledge of litigation to provide a competent service to clients and adequate insurance.

In order to gain authorisation to conduct litigation, barristers within the first three years of practice must confirm that they have a qualified person in their place of practice able to provide guidance on conducting litigation. A qualified person is a bar­rister, or other authorised person, such as a solicitor, entitled to conduct litigation.^[2714] They must have practised for at least six years in the previous eight years, with litiga­tion as their primary activity in the last two years.

Other approved regulators have special arrangements for accreditation to conduct litigation. For example, ILEX Fellows can qualify as Chartered Legal Executive Litigators holding one of two certificates.^[2715] A Rights to Conduct Litigation (Civil Proceedings) Certificate covers all civil proceedings, excluding family proceedings, exercising rights of audience in Judge’s room hearings in the County Court and High Court. A Rights to Conduct Litigation (Family Proceedings) Certificate covers litiga­tion in all family proceedings exercising rights of audience in Judge’s room hearings in the County Court and High Court in all family proceedings.^[2716]

III.