Speak easy

Who has the right to address a court in legal proceedings? That question could once have been answered quite briefly, but over recent years it has become increasingly complex as the ranks of those entitled have grown.

Those ranks may (or may not) now include barristers, solicitors, legal executives, foreign lawyers, costs draftsmen, solicitors clerks, solicitors agents, housing officers, employees of an Arms Length Management Organisation (ALMO), litigants in person, lay representatives, McKenzie Friends, holders of a power of attorney, litigants' family friends and neighbours, Bill Brewer, Jan Stewer, Peter Davey ad infinitum.

Are they all entitled to be heard? The statutory framework which governs rights of audience has recently changed; it is now the Legal Services Act 2007, much of which came into force on 1 January 2010 and which provides in section 13 that the question whether a person is entitled to carry on a reserved legal activity 'is to be determined solely in accordance with the provisions of this Act'.

Reserved activity

Exercising a right of audience (defined as the right to appear before and address a court, including the right to call and examine witnesses) is one of several 'reserved legal activities'. The Act makes it a criminal offence for someone to carry on a reserved legal activity unless they are entitled to carry on that activity because they are either authorised to do so or an exempt person in relation to that activity.

A person may be authorised in respect of a reserved legal activity by 'an approved regulator', for example the Law Society and the Bar Council. The importance of regulators is obvious: they enforce disciplinary processes over their members to ensure that standards of conduct are maintained.

Those who are not authorised may nevertheless be entitled to exercise a right of audience if they are exempt. Exempt persons include anyone to whom a court grants a right of audience for particular proceedings, anyone given such a right by or under an enactment, litigants in person and, for non-family proceedings in chambers, people whose work includes assisting in the conduct of litigation under the instruction and supervision of an authorised person.

Captive audience

Let us look at the list of hopefuls following the grey mare and see whether they will be able to address the Widdicome County Court.

Barristers and solicitors will be authorised by the Bar Council or the Law Society, legal executives by the Institute of Legal Executives, and costs draftsmen by the Association of Law Costs Draftsmen. European lawyers (as defined by regulation) are exempt.

Solicitor's clerks? They will be exempt for non-family work in chambers if, as will usually be the case, their work includes assisting in the conduct of litigation under the instructions and supervision of a solicitor who is an authorised person.

Does the same apply to solicitor's agents? Solicitor's agents are often individuals who have passed their professional examinations to become solicitors or barristers but who have not yet qualified because they could not get a training contract or a pupillage. They work on instructions from those who 'employ' them to attend court hearings on a case-by-case basis, but does their work include assisting in the conduct of litigation and are they acting under the supervision of an authorised person?

Some believe that doing nothing but attending court hearings is not 'assisting in the conduct of litigation'. I think that view may be challenged, and if a solicitor is exercising a degree of supervision over the work of the agent (and their instructions are often highly circumscribed) then a solicitor's agent may in those circumstances be exempt.

Housing officers employed by a local authority are given a right of audience in their employer's rent possession cases before a district judge in the county court by an enactment (section 60, County Courts Act 1984). ALMO employees will be given an equivalent right under section 60A when it comes into force, but oddly only in respect of specified housing cases which do not include ordinary rent arrears cases; further regulations will be needed to plug that gap.

Litigants in person are exempt and may, as they always have done, represent themselves; this applies equally to duly authorised employees of a limited company, provided the court gives permission, which it normally will. Lay representatives are given a specific right of audience in small claims cases, although terms and conditions apply.

McKenzie Friends often perform a useful function in advising and assisting a litigant in person in court, but it has been made clear, most recently in the practice guidance issued in July 2010 jointly by the Master of the Rolls and the president of the Family Division, that that function does not extend to exercising a right of audience.

What about the rest?

All the others would I think need a specific grant of a right of audience from the court in the proceedings in question. The Court of Appeal indicated in 1997, in respect of a similar provision under earlier legislation, that the discretion to grant a right of audience should only be exercised in exceptional circumstances. I cannot see that the position is any different under the 2007 Act.

Paragraph 5.1 of CPR practice direction 39A says that at any hearing the court should be provided with a written statement setting out the name and address of every advocate, his qualification or entitlement to act as an advocate and the party for whom he acts. Judges in future may need to be rather more insistent on seeing such a statement, properly filled in.

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