They noted that on a number of recent occasions the Leeds BPC have been faced with the dilemma of whether or not to grant rights of audience in proceedings in the High Court to solicitors who do not have higher rights of audience.
They stated that:
“In any case, any application has to be considered, and will be considered, by the relevant judge on the merits. However, it may be helpful to outline the relevant law and some of the relevant principles. This note will not bind any Judge on any relevant application made to them.”
The Legal Services Act 2007 (the “2007 Act”) is the governing statute.
Section 12 defines “reserved legal activities” which includes exercising a right of audience. s 13 provides (in part):
“13 Entitlement to carry on a reserved legal activity
(1) The question whether a person is entitled to carry on an activity which is a reserved legal activity is to be determined solely in accordance with the provisions of this Act.
(2) A person is entitled to carry on an activity (“the relevant activity”) which is a reserved legal activity where–
(a) the person is an authorised person in relation to the relevant activity, or
(b) the person is an exempt person in relation to that activity……..”
Section 19 and Schedule 3 define an “exempt person”.
For the purposes of rights of audience, paragraph 1(2) provides:
(2) The person is exempt if the person–
(a) is not an authorised person in relation to that activity, but
(b) has a right of audience granted by that court in relation to those proceedings.
Paragraph 1(7) also confers rights of audience with regard to matters conducted in chambers.
3. The discretion conferred in the court to grant rights of audience is one that is to be exercised only in “exceptional circumstances”.
(1) It is not a matter for the parties to consent to but for the court to determine.
(2) The stringent requirements laid down by the Act should not easily be bypassed. It undermines the protections of the Act if permission is granted too easily or repeatedly. Those protections include proper training, the advocate being under professional discipline (including an obligation to insure against liability for negligence) and the advocate being subject to the overriding duty to the court. It cannot be fair to those who have gone to the trouble to qualify to obtain higher rights of audience if others who have not met those requirements are routinely granted rights of audience.
(3) The court should pause long before granting rights of audience to persons who make a practice of seeking to represent otherwise unrepresented litigants.
(4) The Court should be alive to the possibility that, in considering each application individually, as regards an individual applicant for repeated rights of audience, the collective effect is to permit that individual to by-pass the provisions of the 1990 Act.
(5) Any grant of rights should be made only where there is a good reason to do so, taking account all the relevant circumstances of the case. Rights should not be granted automatically, without due consideration or for mere convenience.
You can read the full guidance here.