“In chambers” – what does this mean following the changes to CPR 39?

The practice of unqualified representatives attending hearings in chambers in the High Court or county court is well established, having been given statutory legitimacy by section 27(2)(e) Courts and Legal Services Act 1990.  For those seeking to exercise a right of audience as an “exempt” person [in accordance with paragraph 1(7) of Schedule 3 of the Legal Services Act 2007 (“LSA 2007”), which replaced section 27(2)(e)], commonly referred to as “solicitors’ agents”, the question of whether a hearing is “in chambers” is of great significance, as the exemption only applies if, inter alia, “the proceedings are not reserved family proceedings and are being heard in chambers…in the High Court or county court”.  

The Civil Procedure Rules (“CPR”) provide for, in effect, three categories of hearing, as set out by Lord Woolf MR in R v Bow County Court ex parte Pelling [1999] EWCA Civ 2004 [at paragraph 20]:

“First of all there are hearings in open court.  Secondly, there are hearings in the judge’s room or chambers to which the public have access.  Thirdly there are hearings in court or in the judges (sic) room or chambers which are in private.  If the hearing is a public hearing in chambers there may be a limit on the number of members of public who can attend and the judge deals with this as appropriate as a matter of discretion.”

The recent amendments to CPR 39.2 [http://www.legislation.gov.uk/uksi/2019/342/article/8/made] have created a presumption that civil hearings will be “in public” [CPR 39.2(1)] and the concurrent removal of the Practice Direction to Part 39 of the CPR [https://www.justice.gov.uk/courts/procedure-rules/civil/pdf/update/cpr-104thpd-update-signed.pdf] has resulted in a move away from certain hearings being listed “in private” in the first instance.  These changes have not, however, impacted on whether the hearing is in open court or in chambers, so it is still the case that a hearing can simultaneously be “in public” and “in chambers” (Lord Woolf’s second category above); one would expect that the impact of these changes to the CPR will be to give rise to more hearings falling into this category.

Confusion arises in trying to ascertain whether a particular hearing is “in chambers”, as there is no definitive list of such hearings in either the CPR or the LSA 2007.  The County Courts Rules 1981 (“CCR”), the predecessor to the CPR, referred to hearings being held “in chambers” or “in open court” (rather than “in public” or “in private”).  Consequently, in McShane v Lincoln [27 July 2016, the County Court at Birkenhead (unreported)], District Judge Peake found that the correct approach was to:

“seek to identify whether the hearing in question falls within a broad category of the type of hearing that under the pre-1999 rules would have been expected to be heard in chambers rather than in open court.”

Given the importance of the issue with reference to exercising a right of audience (in this context), one would hope that there was an easier way of ascertaining to which hearings the exemption in paragraph 1(7) of Schedule 3 LSA 2007 applied.  Nonetheless, it is submitted that District Judge Peake’s suggested approach, whilst potentially unsatisfactory, must be correct, as it is clear from the foregoing that “in private” and “in chambers” cannot be synonymous (although it is possible for a hearing to be both – Lord Woolf’s third category above).  To that end, it is possible to ascertain a number of types of hearing that were “in chambers” in accordance with the CCR:

  1. Interim applications [CCR Order 13, rule 1(4)];
  2. Pre-trial reviews [by virtue of CCR Order 17, rule 4];
  3. Small claims [CCR Order 19, rule 7(3) – small claims were referred to as “arbitrations” in the CCR; this has been more directly translated into the CPR at 27PD4.2 where it states that a small claims hearing “will generally be in the judge’s room”];
  4. Claims by mortgagees for possession [CCR Order 49, rule 1];
  5. Enforcement applications [such applications would be classed as “fixed date actions” in accordance with CCR Order 3, rule 2(1); by virtue of CCR Order 3, rule 3(3), fixed date actions were listed for a pre-trial review].

Recently, there has been circulation [https://www.civillitigationbrief.com/2019/07/18/rights-of-audience-what-is-meant-by-chambers-claimants-representative-sent-home/] of the judgment in National Westminster Bank PLC v Smith [27 February 2019, the County Court at Kingston-Upon-Hull (unreported)].  In Smith, Deputy District Judge Leach concluded that an application for summary judgment was in public and, therefore, not in chambers.  In view of the foregoing, it is submitted that this approach was flawed: had Deputy District Judge Leach adopted the approach suggested by District Judge Peake, in view of CCR Order 13, rule 1(4), he ought to have concluded that such applications are “in chambers”.

N.B.  Both McShane and Smith are non-binding county court decisions which pre-date the recent changes to CPR Part 39.

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