C4.1/4.2: Acquiring Rights of Audience

Rights of Audience in the High Court Of Justiciary/Court Of Session, Supreme Court and the Judicial Committee Of The Privy Council.

1. Statutory Requirements (Solicitors (Scotland) Act 1980 s25A – the Act)

(a) Completion to the satisfaction of the Council of The Law Society of Scotland of a Course of training in evidence and pleading in relation to proceedings in the Courts for which Rights of Audience are sought;

(b) Knowledge of (1) the practice and procedure of and (2) professional conduct in regard to those Courts; and

(c) That the Council are satisfied, having regard among other things to the Applicant's experience in appropriate proceedings in the Sheriff Court, that the Applicant is a fit and proper person to have a Right of Audience in the higher courts.

The Act is further supported by Rule C.4. of the Law Society of Scotland Practice Rules 2011.

2. Process, Introductory Course and Application

The processes for applying for extended civil or criminal rights of audience are very similar with almost identical practice rules governing elements of the process and the course. In both cases, before submitting an application, applicants must have attended a mandatory Introductory Course. Details of providers of the Introductory Course can be obtained from the Law Society of Scotland. Attendance at an Introductory Course will be valid for a period of two years. The two year period may be extended, taking into account, where appropriate, circumstances which may reasonably delay application (e.g. maternity / ill health).

The purpose of the Introductory Course is to explain, amongst other things, the route to extended Rights of Audience including the application process, the standards and training required, and the knowledge to be demonstrated in order to obtain Rights of Audience. The aim is that this will assist potential candidates to understand the process and critically self-appraise whether they have the necessary relevant experience to apply for the course of training, bearing in mind that these are not entry-level training courses and the applicant will require to have a high degree of experience. Applicants will also be advised of the level of commitment required in applying for extended Rights of Audience.

Applicants should complete the Application Form as thoroughly as possible. If the information given is not sufficient, this may lead to a delay while further information is sought. All questions in the Application Form must be answered. Applicants require to satisfy the Council that they are a fit and proper person to be granted extended Rights of Audience. Applicants must be in possession of a current unrestricted practising certificate and answer other questions relating to fitness and properness. Applicants must also detail their previous relevant experience to assist in satisfying the Council that they possess the necessary pre-requisite experience for admission to the relevant course of training.

3. Sifting

The practice rules as amended in 2020 require the Council to determine applications for admission to the course of training. The information provided in the application form and experience evidenced, along with the references provided, will assist the Council in determining whether an applicant is a suitable candidate to be admitted to the relevant course of training. Sifting will incorporate consideration of an applicant’s relevant experience required to satisfy 1(c) above in relation to relevant experience for granting extended Rights of Audience.

4. Experience

This section relates to experience to be evidenced in an application for admission to a course of training as required under Rules C.4.1 and C.4.2 of the Law Society of Scotland Practice Rules 2011 and to satisfy 1(c) above.

As referred to above the courses of training are not entry-level courses. The intention of the courses is to provide a means of training solicitors who already have significant relevant experience and then assessing their suitability to appear in the highest courts in Scotland as well as before the Supreme Court and/or the Judicial Committee of the Privy Council. The courses are a relevant next step for solicitors who can evidence that they already have a sufficiently advanced level of skill and ability to go on to conduct themselves properly in the higher courts. The courses of training are a means by which certain key skills and aspects of procedure which are either unique to the higher courts or are of particular importance there can be learned or refreshed. Exercising extended Rights of Audience carries significant responsibilities and risks, including, in criminal cases, to a client's liberty. With this in mind, applicants should consider very carefully whether they are at a sufficiently advanced stage of their practice to be considered for admission to the course of training and to be a fit and proper person to be granted extended Rights of Audience.

Applicants who have not gained 'relevant experience' as an admitted solicitor for five years prior to submitting an application may be unable to satisfy the Council with regard to experience. However, the Council recognises that there will be applicants who can evidence a particularly relevant and substantive Court workload demonstrating sufficient experience in a shorter period of time. Equally, an applicant may only be able to evidence a relatively small number of examples of cases over a period of five years and may be unable to satisfy the Council with regard to experience.

“Relevant experience” generally refers to experience of the following:

• Solemn trials in the Sheriff Court and/or appeals in the Sheriff Appeal Court for those seeking Rights of Audience in the High Court, particularly trials or appeals involving subject matter, evidence and procedure of significant and similar complexity to the types regularly heard in those courts; and 
• Proofs or debates in the Sheriff Court and/or appeals in the Sheriff Appeal Court and written pleadings / submissions for those seeking Rights of Audience in the Court of Session, particularly proofs, debates, appeals and written pleadings / submissions of significant and similar complexity to the types of cases regularly heard in those courts.

Details of relevant experience in the application form should focus on cases in which a trial, proof or debate in the Sheriff Court or an appeal to the Sheriff Appeal Court has actually taken place.

Applicants for civil Rights of Audience should also provide details of relevant written pleadings that they have prepared along with copies of three examples of written work which may be pleadings and / or written submissions. Quality of written work should be substantiated by one of the references provided.

Potential applicants should think carefully about the experience they have and whether that experience is of a sufficiently advanced level to be able to progress to the higher courts including not just the number of cases but also their subject matter, duration and the skills that those cases evidence by reference to the standards required of solicitor advocates. The same should be considered when submitting evidence of written pleadings/submission where relevant.

The Council recognises that the nature of an applicant’s practice may mean that they may be unable to evidence many appearances in the Sheriff Court as cases may “settle at the doors of the court” or their practice does not routinely involve cases in the Sheriff Court.

Cases that had not at the time of application reached trial, proof or debate stages or had concluded shortly before reaching trial, proof or debate stages should only be included if an applicant has personally argued a lengthy contested motion in them with the need for arguments to be presented to the Court along with answering questions from the Bench.

It is also anticipated that where this has happened, an application would likely be strongly supported by evidence of “other experience” where applicants have instructed Counsel or “other work” where they have provided advocacy before tribunals / panels for professional bodies. An applicant should also indicate in these instances the role in which they were involved including whether they have appeared personally in the Court of Session, either in Chambers or at the Vacation Court.

Information to be given about any case evidencing relevant experience should include as a minimum:

• the name of the case;
• the Court in which it took place;
• the year in which it was heard;
• the duration of a case; and
• whether the hearing was a trial, proof, debate or appeal (or as above, in certain circumstances, lengthy contested opposed motions); and
• your role and contribution to that case, with reference to relevant performance indicators of the Standards of a Solicitor Advocate that appearing in the case demonstrates.

It is not necessary for an applicant to advise of the outcome nor to forward background papers in connection with the case.

In addition, an applicant should provide a more detailed account of select cases which they consider demonstrate their most proficient Court work. Again, an applicant should be mindful of the content of the Statement of Standards for Solicitor Advocates and the associated performance indicators and provide clear evidence of where they can demonstrate comparable compliance with the standards.

Applicants who have been practising members of the Faculty of Advocates may count their experience in that capacity. The Council will in appropriate cases consider the experience of solicitors who have been practising in other jurisdictions. 

5. Referees 

Applicants must state the names and email addresses of two individuals from whom the Society can obtain a reference. At least one of the referees should be a Sheriff or other person acting in a judicial capacity (eg chair of a tribunal / panel) before whom the applicant has appeared and can reference one of the select cases that the application refers to. The other referee can be a solicitor or advocate but should not be a business partner, employer, manager, employee working under the applicant's supervision or client. The important consideration here is that the referee requires to have knowledge of your work and also be sufficiently independent to be able to provide an objective reference. For civil applications one of the referees should be able to speak to written pleadings / submissions made by the applicant. Applicants require to request permission from a potential referee prior to nominating them. In the event that the Council consider that further references are required it may request these.

6. Knowledge of Practice, Procedure and Professional Conduct

The Council has determined that knowledge of the practice and procedure of and professional conduct in regard to the Courts in which the Rights of Audience are being sought, should be demonstrated in two written examinations. These will be one examination on Practice and Procedure and one examination on Professional Conduct, usually taken on the same day under examination conditions in Edinburgh (or remotely as appropriate). The examination on professional conduct will be based on rules C.4.3 and C.4.4 and other conduct rules which may be in force from time to time, as well as general principles of good professional conduct. The Practice and Procedure examination will be "open book". For the avoidance of doubt this means that printed published material may be used in the examination but handwritten or typewritten notes may not. The Professional Conduct examination is held under strict exam conditions with no aids. Copies of previous examination papers may be requested beforehand.

There will be a fee to be paid each time an Applicant sits an examination, which will require to be paid to the Society in advance. Further details will be issued before each diet of examination.

Applicants who have passed the examinations for entry to the Faculty of Advocates within the last five years, or who have practised as Advocates regularly during this time, will normally be regarded as having appropriate knowledge of the practice, procedure and professional conduct in the Courts for which Rights of Audience are sought.

7. Sitting-In

This will consist of mandatory Sitting-In in the Court for which rights are sought for up to six days (including four days in the Appeal Court or Inner House) in accordance with Rule C4.1.6(b) and C4.2.6(b) of the Law Society of Scotland Practice Rules 2011. Where appropriate, course conveners may amend this requirement. Applicants with substantial experience of the Court are entitled to seek partial exemption but will normally require to undertake Sitting-In for the four days in the Appeal Court/Inner House. Sitting-In means attendance at the Court of Session/High Court of Justiciary at the hearing of a case or cases in which the applicant or their practice unit or their employer does not act for any of the parties (except for members of COPFS) unless otherwise directed by the course convener. Sitting in must be evidenced by completion of the Sitting-In card provided in which candidates must provide written detail and reflection (with reference to the Standards of a Solicitor Advocate) on the Sitting-In that they attend. 

Applicants may find it helpful to undertake additional Sitting-In on proofs, debates or appeals in the Court of Session/High Court of Justiciary.

Sitting-In is arranged by course candidates who should check the court rolls to make relevant arrangements however the Society will provide additional information where available. 

8. Training

General

For all applicants, the Council of the Society has determined that the courses of training require to be self-financing. Details of fees will be circulated by the Society's CPD & Training Department at the appropriate time.

All applicants will require to complete the course of training to the satisfaction of the Council. The standard to be expected of applicants when their performance is being assessed is the standards of a solicitor advocate.

Information on the specific courses of training is available on the CPD and Training Regulatory Courses pages of the Society’s website.

Court of Session

The course of training extends over six days including two respective days for the oral and written assessments on evidence, pleading and procedure run by a Convener whose experience satisfies the requirements of the relevant practice rules. The course will run over weekends and some weekdays and attendance at all days of the course is mandatory. Applicants' performance at the course and in both written and oral pleading will be assessed and the results of those assessments and accompanying Convener’s report will be notified to Council, and where successful, shall fulfil the requirement that the applicant has completed the course of training as required by the Act and in accordance with the relevant practice rules.

High Court

For applicants in the High Court of Justiciary, the course of training will consist of a course extending over three or four days on evidence, pleading and procedure run by a Convener whose experience satisfies the requirements of the relevant practice rules. This is followed two or three weeks later by an assessment day. Both the course and the assessment take place on weekends and attendance at all days of the course is mandatory. Applicants' performance at the course and in oral pleading will be assessed and the results of those assessments and accompanying Convener’s report will be notified to Council, and where successful, shall fulfil the requirement that the applicant has completed the course of training as required by the Act and in accordance with the relevant practice rules.

Applicants' performance at this Course will be assessed by a relevant assessment panel and the results of those assessments and accompanying convener report will be notified to Council to, where successful, fulfil the requirement that the Applicant has completed the training as required by the Act and in accordance with the relevant practice rules.

9. Further Information and Application Fees

The Council may seek further information, such as further referees, to enable it to be satisfied in terms of the Act. Applications must be accompanied by the non-refundable Application Fee. Separate applications will be required - with a separate fee payable in each - for the High Court on the one hand and the Court of Session on the other hand. In addition, training course fees and exam enrolment fees are payable.

10. Notification of Rights of Audience and Introduction to the Court

Applicants who have satisfied the Council that they fulfil the statutory requirements will be granted Rights of Audience by the Council of the Society and a letter confirming that will be issued at the relevant time. Intimation will be made by the Society to the Lord President/Lord Justice General as the case may be and to the Scottish Legal Aid Board where appropriate.

Solicitors who have been granted Rights of Audience will be introduced formally to the Court at a ceremony before a Lord Ordinary and will not be entitled to exercise their extended Rights until after the introduction. Family, friends and colleagues are welcome to attend this ceremony. It will normally take place over a lunch period to accommodate both the Court and the new Solicitor Advocates. Full details will be circulated at the relevant time.