England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE FC2 99/5117/2

COURT OF APPEAL (CIVIL DIVISION )

(His Honour Judge Rich QC )

Royal Courts of Justice

Thursday, 28th January 1999

B e f o r e :

LORD JUSTICE ALDOUS

LORD JUSTICE WALLER

- - - - - - - -

ANDREW JONATHAN MILNE

Appellant

- v -

(1) SHIRLEY KENNEDY

(2) DAVID JONES

(3) RICHARD CAZENOVE

(4) JUDITH BOLLINGER

(5) DENISE LAMONT GORDON (6) JENNIFER GILLIBRAND

(7) MICHAEL GILLIBRAND

Respondents - - - - - - - -

(Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited

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- - - - - - - -

MR. T. CHARLTON Q.C. (instructed by Messrs Andrew Milne & Co., London, EC2) appeared on behalf of the Appellant/Plaintiff.

THE THIRD, FIFTH AND SEVENTH RESPONDENTS/DEFENDANTS appeared in Person.

- - - - - - - - J U D G M E N T

( As approved by the Court )

Crown Copyright

LORD JUSTICE ALDOUS: This is an appeal against the judgment and order of His Honour Judge Rich QC of 17th December 1998, in which he granted Mrs Mainwaring rights of audience in the action. The appeal is somewhat academic as Mrs Mainwaring is no longer going to represent the defendants, but, even so, the defendants seek to uphold the judgment of the judge.

The action was started by writ dated 24th September 1997. The plaintiff, Mr. Milne, a solicitor, was a member of the committee of an unincorporated association known as the Smith Charity Leaseholders Group. The seven defendants were members of that committee. The plaintiff alleges that from about 4th September 1996 he did not receive any notices of committee meetings. It seems that he was removed from the committee without his consent. He alleges that his removal was unlawful and he claims in the action 12 grounds of relief. To get a flavour of his claim, I need only refer to some of them. Firstly, he claims a declaration that he is and has been at all times since 10th May 1995 a member of the committee. In another declaration he claims that any resolutions passed at or business conducted at any purported meetings of the committee of which the plaintiff was not given notice are invalid and of no effect. Thirdly, he claims an order requiring the first or the fourth defendant to produce books of account, management accounts, working papers, bank statements and the like. He also claims certain other inquiries, including an order that the first of the four defendants do procure the reimbursement to him of £2,232.74 incurred by him by way of out of pocket expenditure in connection with the affairs of the association. Damages and interest are also sought.

The defendants do not deny that the plaintiff was a member of the committee but deny that he is entitled to the relief claimed. The action is due to be heard on 1st February 1999 (next Monday). At a hearing on 17th December 1998 the judge had to deal with a number of issues preparatory to the final hearing. At that hearing four of the defendants sought permission from the judge to have Mrs Mainwaring represent them both at the directions hearing and at the hearing of the action due to be heard on 1st February. The judge acceded to that submission. He refused leave to appeal on the basis that his decision was an exercise of discretion. I granted leave to appeal. It is that appeal which is now before us.

Mrs Mainwaring has no legal qualification and no legal training. Her experience in the law has been gained as a litigant in person which has been conducted by her with tenacity. She has been complemented by a member of the Court of Appeal in the way that she has conducted the appeal. She knows about the dispute. She lives in the relevant area and has been a member of the committee.

Rights of audience before the county court are governed by the Courts and Legal Services Act 1990 and the County Courts Act 1984. The Courts and Legal Services Act has as its statutory objective that which is set out in section 17(1) of the Act. It is as follows:

"The general objective of this Part is the development of legal services in England and Wales (and in particular the development of advocacy, litigation, conveyancing and probate services) by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice."

Pursuant to that objective, barristers and solicitors have rights of audience as members of authorised bodies pursuant to sections 31 and 32 of the 1990 Act and section 61 of the County Courts Act. Legal executives have limited rights of audience by direction of the Lord Chancellor pursuant to the powers given him under section 61 of the 1984 Act. Local authority officers also have limited rights of audience and, in general, anybody can appear in small claims cases, subject to the Lay Representative (Rights of Audience) Order 1992. There is retained in section 27(2)(c) of the Courts and Legal Services Act a residual power of the court to permit others to appear. Section 27(2) is in these terms:

"A person shall have a right of audience before a court in relation to any proceedings only in the following cases -

....

....

(c) where paragraph (a) does not apply but he has a right of audience granted by that court in relation to those proceedings...."

Clearly the judge had a discretion pursuant to section 27(2)(c) to grant Mrs Mainwaring a right of audience in respect of the proceedings in this case. The question arises as to whether he exercised his discretion in the correct way. The way that that discretion should be exercised has been the subject of guidance in the judgment of Lord Woolf MR in D v S (Rights of Audience) [1997] 1 FLR 724. At page 728 he said this:

"However, this is a situation which now calls for this court to give guidance. I can see arguments being advanced that the law as it is now is not appropriate and it should be relaxed in some way. However, the law has not been relaxed and the Act to which I have referred still governs the position. That Act does give a court a discretion. In my view, it is quite clear from the terms in which the Act as a whole is written that it is giving a discretion which is to be exercised only in exceptional circumstances.

When you consider Dr Pelling's background, he is conducting, on behalf of those who wish him to do so, assistance in the litigation process which is totally out of accord with the spirit of the Act. I consider that, on any application which Dr Pelling makes in future, careful consideration should be given by the court as to whether it should exercise its discretion by allowing him to have advocacy rights. This is not a matter for the consent of the parties. I refer to one case where in the Family Division Principal Registry he was given advocacy rights by consent. This should not happen. This is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements. It cannot be right that Dr Pelling can bypass those stringent requirements, albeit that no doubt those who he has helped are very grateful for his assistance.

The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as De Pelling and that would be monstrously inappropriate having regard to the requirements that are placed upon those who have normal rights of audience.

I would therefore given this guidance to courts for the future when exercising their discretion. When they have applications by Dr Pelling, or others in a similar position, to consider, they should pause long before granting rights of audience. This is because otherwise by considering each case individually, the collective effect of what they are doing is allowing Dr Pelling to bypass the provisions of the Act. That is clearly not what Parliament intended. In saying this I am very conscious that Dr Pelling's assistance could be very useful to some litigants. I also appreciate that judges up and down the country who have the difficult task of cooping with litigants in person would often be grateful for his assistance, as no doubt was the judge in the court below in this case. However, we cannot allow the fact that our personal inclination would be that we should receive help from Dr Pelling to enable him to bypass the law in the way I have indicated."

His Honour Judge Rich in his judgment said:

"It appears to me that in a case of this size and nature it is highly desirable that the four defendants whom she wishes to represent should have that benefit rather than be put to the expense of employing solicitors or put the court to the nuisance of having each of them make their representations, perhaps less lucidly but certainly separately."

The judge went on to refer to D v S (Rights of Audience) and came to give his reasons as follows:

"It seems, however, to me that where a person with a particular interest in the particular case of the particular defendants is prepared to act on their behalf without remuneration, as I am satisfied is now this case, and will by so acting in all probability enable the proceedings to be conducted more efficiently and certainly more expeditiously, it is in the interests of justice that I should allow the defendants to be represented by such a person if such is their choice, notwithstanding that they will not have the benefit of those protections which they would have if they employed much more expensively a person in one of the professions which has rights of audience automatically."

This court will not interfere with the exercise of discretion given to a judge unless it is satisfied that he exercised it upon wrong principles or took into account matters which he should not have done or omitted relevant matters or was plainly wrong.

In this case I believe that the judge failed to adopt the right principles. As was made clear in D v S , rights of audience should only be granted to persons outside the categories granted in the statute in exceptional circumstances. He never identified what those exceptional circumstances were. On that ground I believe that he failed to apply the right principles and therefore the court should exercise its discretion afresh.

The judge also seems to have contemplated that it was right to grant rights of audience because an untrained person, such as Mrs Mainwaring, could conduct the proceedings on behalf of the others more expeditiously and efficiently. Nobody could contemplate granting rights of audience to a person who was not going to make the proceedings more expeditious and efficient. That is a pre-condition which the court must take into account when considering what exceptional circumstances arise. The judge did not identify any circumstance which could be exceptional, and on that ground also I believe his judgment is open to criticism. In those circumstances it is right for this court to exercise the discretion afresh.

Mrs Goulimis, the fifth defendant, is an articulate and intelligent woman. She submitted that the judge was right to allow Mrs Mainwaring to represent the four defendants and that there were exceptional circumstances in this case. She submitted that the whole case was a harassing one. She described the tactics used by the plaintiff as Mafia tactics. The plaintiff, a solicitor, had, she submitted, conducted the case, which was for a small amount of money, in such a way that the defendants had had to incur substantial costs. The position had been reached when they could no longer go on paying their lawyers as there was no chance of an order for costs being made in the defendants' favour being paid by the plaintiff. She believes that the plaintiff has behaved disgracefully, not only in the conduct of the action but in the whole action. She told us of the way in which Mrs Mainwaring had helped them in relation to taxation of costs in another action, and also before a tribunal. She said that she trusted Mrs Mainwaring and needed her help to present her case. She accepted that Mrs Mainwaring would no longer be able to do so and in those circumstances the appeal was academic.

Mr. Gillibrand, the 7th defendant, is also an intelligent, educated and articulate person. He produced a written submission on behalf of himself and his wife, amounting to six typed pages. In this judgment I cannot summarize all the points that he made in that written submission, but will set out what I see as the main reasons why he also resisted the appeal. First, he submitted that the appeal was redundant, in that Mrs Mainwaring will no longer appear for the defendants. The fact that the appeal was being pressed was, in his view, another instance of the way the plaintiff had harassed him and his co-defendants in the litigation. Second, he drew attention to the substance of the action which he described as trivial or "a parish pump" dispute. Even so, according to him, the case had developed into a vendetta by the plaintiff, with the result that the costs had escalated out of all proportion to the costs of the dispute. It would therefore be unjust and contrary to natural justice to require the defendants to pay more money to obtain legal representation to match the ability of the plaintiff. The plaintiff used his firm, whereas the defendants would have to pay a firm of solicitors and counsel. Mrs Mainwaring was not the equivalent of a solicitor and counsel but was the best available to them. He submitted that the circumstances were exceptional and amounted to strong reasons why it would be helpful for the defendants to have the assistance of and knowledge and experience provided by Mrs Mainwaring. The only alternative to her assistance would have been to spend even more money and thereby further increase the disproportion and disparity between the context of the action and the amount spent. Towards the end of his submissions he put forward four propositions. Firstly, he said that it was a breach of common sense that a dispute in a committee of unincorporated local residents, combined with a dispute over expenses amounting to just over £2,000, and a solicitor's bill of £500, should lead to costs amounting in excess of £100,000. Second, he said that it was unfair and a breach of natural justice that in such a minor dispute a party should be open to the imposition of costs far outweighing the value of the action. Third, it was unfair and also a breach of natural justice that the actual direct costs of one side were significantly lower than those of the other. In that respect he was referring to the fact that Mr. Milne was a solicitor and therefore could use his firm to carry on the proceedings, whereas they would have to employ solicitors and counsel. Fourth, he said that it cannot be consistent with the purpose and objective of the Courts and Legal Services Act to restrict the access to justice by members of the public by erecting and sustaining barriers as a result of Mrs Mainwaring being prevented from appearing for them. Finally, he drew attention to what he saw was the adverse effect upon justice that he believed would result if the appeal was allowed.

Despite these submissions made by the defendants, I do not believe that there are in this case exceptional circumstances which would provide grounds for this court to exercise its discretion in favour of allowing Mrs Mainwaring to represent them. The object of the Act, as Lord Woolf pointed out, was to provide for the development of advocacy, litigation, conveyancing and probate services by making provision for new or better ways of providing such services and a wider choice of persons providing them, while maintaining the proper and efficient administration of justice. That entails some restriction. The restriction is set out in the Act. Mrs Mainwaring has no legal qualifications, nor training. She has, as I have pointed out, picked up experience and knowledge during her experience as a litigant. She is intelligent and articulate, but so are the defendants. Mrs Mainwaring has knowledge of the dispute; so do the defendants. I accept that the result may be that the defendants may either have to pay to be represented or will be seen to be at a disadvantage because they are being sued by a solicitor. That is something the court system contemplates and is consistent with the objects of the Act. As pointed out by the Master of the Rolls in D v S , we must be careful to make sure that the purpose of the Act is not bypassed. To make such an order in this case would amount to that occurring. In my view, there are no exceptional circumstances. Therefore, the judge came to the wrong conclusion.

Despite coming to that conclusion, I have been concerned about the position the defendants seem to have been put in by this action. As was made clear in D v S , the court has an interest in enforcing the provisions of the Act. The object is that which I have stated and is part of the necessity for the proper administration of justice. Thus, it appears that the court needed to hear and determine this appeal, although the result was academic. The court has to decide what representation it should have before it. The Act lays that task upon the court. If the defendants are right that the action is part of harassment from the plaintiff and that the appeal is part of that harassment, then careful consideration needs to be given as to whether the plaintiff had an interest in bringing and prosecuting this appeal. That no doubt is a consideration that is relevant to costs. It will be necessary to hear the parties as to what is the appropriate order. For my part, I would allow the appeal.

LORD JUSTICE WALLER: I agree. What I would like to emphasize is that it seems to me that it is the court which has the real interest in ensuring that the rights of audience are only granted to appropriate persons. It seems to me that a party such as Mr. Milne's interest in whether one lay person should represent all others is only minimal. I am anxious that an appeal has been brought in this litigation. I am anxious that it may have been brought for tactical reasons and not because of any real concern as to whether Mrs Mainwaring should represent all four defendants. That anxiety can only be fuelled once it is recognized that the appeal was still pursued, even when it became unlikely that Mrs Mainwaring would appear at the trial for the four defendants. Because of the court's interest in the matter, once seized of the appeal it has been appropriate that the decision of the judge should be reviewed. I agree entirely with my Lord's view on that aspect. In agreement with him, when the question of costs comes to be considered, it seems to me that the wider considerations should be borne in mind.

Order: Appeal allowed; order giving Mrs Mainwaring leave to appear set aside; no order as to costs.

(Order not part of the judgment of the court)