England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE EADY)

		Royal Courts of Justice The Strand London
		14 June 2000

1. THE LORD CHIEF JUSTICE: This is an appeal from a decision of Eady J given on 16 December 1999. He set aside an ex parte order which had been made by Morland J on 14 May 1999. By that order Morland J granted the claimant's husband, Mr Vincent Keter, rights of audience at the trial and in any interlocutory proceedings to appear on behalf of the claimant pursuant to section 27(2)(c) of the Courts and Legal Services Act 1990 (as amended). Eady J granted the claimant permission to appeal from his decision and for the purposes of the appeal Mr Keter was given rights of audience.
2. The facts and history appear from the statements which are before us. I summarise them shortly for the purpose of this appeal.
3. The claimant is a psychotherapist. The defendants are also psychotherapists. All are members of the Gestalt Psychotherapy Training Institute, of which the claimant was a founding member. The institute is an organisation which provides a framework for training and accreditation of psychotherapists. On 27 November 1997 the Executive Council of the Institute voted unanimously to suspend the claimant from membership because it was felt that her continued membership was making it increasingly difficult for the Institute to conduct its business.
4. The claimant was told of her suspension by letter of 2 February 1998 from the defendants' solicitor. There was an unsuccessful appeal to a committee. Proceedings were then issued by the claimant against a number of defendants (19 in all) in which there were allegations of conspiracy, inducement to breach contract and libel. There were also separate proceedings issued in May 1998 against the chairman of the management committee of another institute.Mr Keter, the husband of the claimant, has a law degree. He has completed his Bar finals but has not yet been called to the Bar. It appears that he may have deferred his call to the Bar because it might be difficult for him to conduct the proceedings if he became a barrister. It is important to note that although there are Rules of Conduct of the Bar which could be relevant for a husband appearing for a wife on an issue of this sort, those Rules of Conduct can be waived. We know not whether they would have been waived in this case if Mr Keter, instead of deferring his call, had chosen to be called to the Bar and then sought the acquiescence of his professional body in his acting in this matter.
5. On 29 April 1999 the application was made to Morland J without notice. Mr Keter argued before the judge that there were two grounds why he should be granted rights of audience: first, the claimant's ill health (she had had an angina attack on 8 February); and secondly, her lack of means.
6. As to the lack of means, there was some amplification by Mr Keter in the course of argument when he indicated that there had been attempts made to obtain the assistance of a lawyer on a conditional fee. That was not forthcoming. Furthermore, he had sought to make use of the Pro Bono Unit organised and run by the Bar Council.
7. The material which was put before Morland J was limited. It included a short medical report from a Dr Claire Capstick, which was dated 23 July 1998, which was therefore almost a year out of date. That report says:

"I have been approached by Professor Clarkson to write this short report in support of an ex parte application to be made to the High Court.

I am told that Professor Clarkson suffered an angina attack for which she was hospitalised in February 1998. I saw Professor Clarkson for consultations on 29 June and 13 July.

Professor Clarkson is suffering from a depression characterised by prominent anxiety systems. I understand that this has arisen in the settling of an unpleasant situation involving a previous colleague. The situation is acrimonious and has resulted in litigation.

I do not feel that she is well enough to attend court."

8. That was very flimsy medical evidence indeed to support an application of this sort being made before Morland J almost a year later.
9. The decision having been made by Morland J, the defendants made an application to have his order set aside on the basis that it was made ex parte and they wished to argue that there was not the material before Morland J to justify the making of an order. Other matters were also relied on. There was the fact that Mr Keter had himself behaved in a way which was not entirely satisfactory. He was described in one document as "a lawyer and an advocate of the High Court", which at that time was not a description which he should have used. In addition, there was placed before the court a Power of Attorney where the claimant handed over to Mr Keter the rights as to how the litigation was to be conducted.
10. Traditionally the courts have exercised close control over who has rights of audience before them. They do so in the interests of the public and in the interests of the proper administration of justice. Normally there are available two options to a person wishing to bring litigation. First, a lawyer who has rights of audience can be instructed to appear on his behalf. Second, he can bring the litigation himself acting in person. It is an important well-established principle of the administration of justice in this jurisdiction (unlike some others) that the ordinary member of the public has the right to come to court to conduct litigation themselves. Whether it is before a magistrates' court, a County Court, the High Court or the House of Lords, that right has been maintained throughout the years. But, if somebody wishing to appear in person, wants somebody who is not an advocate and who has no rights of audience to appear on his or her behalf instead of someone who has the rights of audience, that, in my judgment has to be justified. The courts are always anxious to help and recognise the difficulties that litigants in person have in presenting cases. For that reason it is well-established that they can have the assistance of a friend in court. That person can sit beside them and give help and advice during the course of the proceedings. But in such a situation a litigant in person is not in a position where he has an advocate appearing on his behalf.
11. The position of having an authorised advocate appearing on behalf of a litigant in person is now controlled by the Courts and Legal Services Act 1990 (as amended). Section 27 of that Act under Part II, entitled "Legal Services" provides:

"(1) The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part.

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

12. (a) deals with persons who have rights of audience; (b) deals with the situation where a person has rights of audience under a specific statutory enactment; and (c), which is the relevant provision, provides:

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

13. When considering section 27, it is also important to have regard to sections 17 and 18 of the Act. It is not necessary to set out the provisions, except to point out the general statutory objective which is contained in subsection (1) which provides:
14. "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."
15. Subsection (2A), which was inserted into section 27 when the Act was amended, provides:

"Every person who exercises before any court a right of audience granted by an authorised body has --

(a) a duty to the court to act with independence in the interests of justice; and

(b) a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of the section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them."

16. Subsection (2A) makes it clear that having someone who is a close relation to act for the person who is the party in the proceedings does not fit easily into the statutory framework. It will be difficult, if not impossible, for example, for a husband to act "with independence in the interests of justice" if he is appearing for his wife. If he is not a member of a professional body, he will be under no duty to comply with the rules of conduct of that body and thus will be in a position which is different from that of the professional person who has rights of audience.
17. The courts in this country have always been assisted in the performance of their duties by members of a profession in order to administer justice. The duty to be open with the court and the duty to assist the court is one which has been long established. Such duties are today emphasised in the family jurisdiction which deals with children. They are also emphasised in the overriding principles set out in Part 1 of the Civil Procedure Rules. The fact that a person who is not qualified and cannot comply with subsection (2A) wishes to appear as an advocate does not mean that they should not be allowed to do so. The overriding objective is that the courts should do justice. Now that legal aid is not available as readily as it was in the past means that there are going to be situations where litigants are forced to bring proceedings in person when they will need assistance. However, if they are litigants in person they must, in my judgment, establish why they need some other person who is not qualified to appear as an advocate on their behalf. In the ordinary way it will be for them to satisfy the court that that is appropriate. If somebody's health does not, or may not, enable them to conduct proceedings themselves, and if they lack means, those are the sort of circumstances that can justify a court saying that they should have somebody who can act as an advocate on their behalf.
18. I emphasise that this appeal is only concerned with the position as to whether Mr Keter is entitled to act on behalf of his wife as an advocate. There is a different role, that of conducting proceedings. Again, there are restrictions on a person performing that task which in the ordinary way prevents a non-qualified person performing the task. The provisions are similar to those under section 27, but as they do not arise here I only mention them so as to make clear that that is a factor that has not been forgotten, albeit that the evidence in this case suggests that Mr Keter may up until now have been conducting the proceedings on behalf of his wife when he did not have the permission of the court to do so. I do not take any point against him for that because it would be possible for him to perform the tasks that he says his wife wishes him to perform without offending the rule with regard to the conduct of the proceedings. It is, however, important that we should have in mind that these are proceedings which are being conducted and should be conducted by Professor Clarkson unless or until a court makes an order giving Mr Keter permission to conduct them on her behalf.
19. In coming to his conclusion, the judge was clearly influenced by a judgment of mine in D v S [1997] 1 FLR 724, in which the other members of the court were Waite LJ and Waller LJ (who is part of the court today). In that case the court was dealing with a person who had no rights of audience under the statute but who was, without having any entitlement to do so, providing legal assistance to those who no doubt were grateful for it. Although there is some suggestion in this case that Mr Keter has acted for others, there is nothing to suggest that he is in the same situation as the advocate in D v S. In the course of my judgment in that case I said:

"There was a misunderstanding in that case. There has been no direction given which deals with this issue. 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 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, 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 Dr 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 give 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 that 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 coping with litigants in person would often be grateful for his assistance, as no doubt will 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."

20. It is right that I indicated in the course of my judgment, in a passage on which the judge relied, that the discretion which appears in section 27(2)(c) was only to be exercised in exceptional circumstances. If the judge, because of my lack of facility of language, was misled by what I said, I regret that. But certainly what I indicated in that case was intended for a situation which was of the sort there described and did not deal with a situation where a husband wished to appear for his wife. It does not matter whether it is said that the position is different in that case or whether it is said that the fact that a husband wishes to appear for somebody who is part of the same family makes it an exceptional situation. It is clear that the objections to someone setting themselves up as an unqualified advocate do not exist in a matter where a husband is merely seeking to assist his wife. However, the judge did not have the advantage of that clarification. He had to deal with the case on the material which was before him.
21. From what I have said already, it will be clear that I regard it as the obligation of someone who wishes to have an unqualified advocate to appear for them, to make out a case for this to be done. The application before Morland J was not made by the claimant, but was made by Mr Keter. That was an undesirable start to the whole process. Particularly having regard to the medical evidence which was then available, in my judgment there was nothing to prevent the claimant going before the judge and explaining why she wanted assistance. In the normal way it should be for the claimant to do that. Furthermore, rights of audience having been granted to Mr Keter in this case, the claimant virtually disappeared from the litigation. That is not what should happen. She is entitled to the assistance of her husband as an advocate, but she is still the claimant. She is still the person who is conducting the litigation and one would expect her normally (if there was no good reason for not doing so) to be present on occasions where matters directly affecting her interests are involved. Additionally, the case was unusual because of the Power of Attorney to which I have referred. The Power of Attorney was adopted by Mr Keter (and I accept this) as a stratagem to enable him to show that his wife was in support of what he was doing. It is some evidence of that. On the other hand, however, it indicated that his wife was giving total control of the proceedings to Mr Keter. The medical evidence before Eady J was unsatisfactory, as it had been before Morland J. The explanation as to why this obviously intelligent lady was not able to conduct the litigation herself was not adequately explained. However, more material has been placed before this court at a very late stage by Mr Keter as to his wife's health. Miss Sharp, to whose submissions we are indebted, rightly takes the point that she had no opportunity to test that evidence. The evidence appears to be signed by a qualified consultant; it is in the sort of terms one would expect from a consultant. The court was not anxious to allow further delay to occur in this matter because of the late production of a medical report. We have therefore had regard to the medical evidence, but we have borne in mind Miss Sharp's submission and have recognised her difficulty in dealing with the late evidence.
22. The court was concerned that, even today, Professor Clarkson was absent when the appeal started. We considered it very important that we should be personally satisfied as to the position. In saying that, we are not suggesting that in the normal event the court will wish to allow the matter to be dealt with other than in a summary manner. The danger is that if it is investigated fully, large amounts of costs will be incurred to very little effect. So the court saw Professor Clarkson in a private room when she was able, in the presence of counsel and solicitors for the defendants, and in the presence of her husband, to explain to us personally her reasons for wanting to have the assistance of her husband. She having done that, my conclusion here is that this appeal should be allowed.
23. For the reasons I have indicated, Eady J applies D v S too strictly to the different circumstances of this case. I am satisfied that there would be a danger of Professor Clarkson being deprived of her right to have the case conducted before the courts in a way which would enable her claims to be investigated if she did not have the assistance of her husband as an advocate. The judge having erred in principle for the reasons I have explained, it seems to me that we must exercise our discretion on the different material which is before us. On that basis I would restore the order made by Morland J and allow the appeal.
24. I would, however, finally say this insofar as it is not already clear from what I have already said. It is very important that courts, without going into the matter in a disproportionate way, do satisfy themselves that it is right to extend rights of audience to those who are not properly qualified. The courts are at a disadvantage and the public can be at a disadvantage if rights of audience are too readily given to those who do not have the necessary qualifications.
25. LORD JUSTICE WALLER: I agree entirely with the judgment of my Lord, but will add a word of my own by way of emphasis. It is unfortunate that much time and effort has been expended in resolving the issue whether Mr Keter should be entitled to represent his wife who is the claimant in this litigation. It began to go wrong, in my view, when Mr Keter made an ex parte application and appeared ex parte before Morland J on 14 May 1999 to obtain an order that he should be able to represent his wife. It is reasonably clear that the claimant was fit enough to make that application herself. What is more, there could not be any reason not to make that application with the respondents represented. It may not be Mr Keter's fault; it may have been ignorance, but that is the position. If that had happened, the court could have had the advantage of seeing the claimant -- the litigant in person -- and being able to weigh up whether the case was one which the litigant in person wanted to bring, whether the reason why the litigant wanted her husband to deal with the matter was genuine, and whether in the court's interest it was likely that the court would receive proper and better assistance from Mr Keter, the husband, than if the claimant was made to conduct the litigation on her own.
26. I agree with my Lord on the proper principles to be applied to an application for a close relative to represent a litigant in person in order to have that right of audience. I also associate myself with my Lord's remarks in relation to his judgment in D v S; I was a party to that judgment on that occasion. The position of a close relative seeking to exercise a right of audience is very different from the circumstances with which that case was concerned and it is unfortunate that the judge was possibly misled into applying a wrong test, as he did.
27. The point is that the court must be able to see whether it is a proper case to allow a relative to act. It will normally only be able to do that if the litigant in person appears together with the representative and makes that application. I would thus stress that it was wrong, and will be wrong, for an ex parte application to be made. The normal time to make an application of this sort (ie for a right to speak) should be at the first inter partes hearing with the litigant in person present, the relative present and the other side present. It is only in those circumstances that the court is be able to weigh up the position. Morland J did not have that opportunity. Nor did Eady J have that opportunity because the claimant did not attend and make her position clear to him. As my Lord has explained, the position was different before this court. I agree with him that for the reasons he has given, the appeal should be allowed.
28. LORD JUSTICE CLARKE: I agree with both judgments. The judge directed himself that the question which he should answer was whether there were exceptional circumstances which justified granting Mr Keter rights of audience under section 27(2)(c) of the Courts and Legal Services Act 1990. I agree with my Lords that that is not the relevant question in a case of this kind. As I see it, the question is simply whether, in all the circumstances of the case, the court should exercise its discretion under section 27(2)(c). The section does not in any way fetter the exercise of the court's discretion, although the discretion must be exercised in the light of the objective of Part II of the Act set out in section 17(1) and of the general principle set out in section 17(3). In exercising the discretion in any particular case, I agree that the court must have in mind the general principles referred to by Lord Woolf. There is a spectrum of different circumstances which may arise so that it is difficult to lay down precise guidelines. Cases will vary greatly. For example, in a case where the proposed advocate is holding himself out as providing advocacy services, whether for reward or not, the court will only make an order under section 27(2)(c) in exceptional circumstances: D v S (Rights of Audience) [1997] 1 FLR 724. On the other hand, where the proposed advocate is a member of the litigant's family, the position is likely to be very different, although, as this case shows, even in such cases the circumstances may vary widely.
29. There is, in my judgment, no warrant for holding that in such cases an order should only be made in exceptional circumstances. To my mind there is nothing in any of the decisions to which we were referred, including D v S, which requires us so to hold. All will depend upon the circumstances.
30. It follows that the judge did not ask the correct question and that it is for this court to exercise its own discretion. That discretion should only be exercised for good reason. The question is whether, having regard to the general principles set out by Lord Woolf, there is good reason on the facts of this case to permit Mr Keter to speak on behalf of the claimant at the forthcoming interlocutory applications and at any trial. To put it another way: is it just to permit him to do so?
31. For the reasons given by Mr Lords, I agree that it is just to permit him to do so, subject, no doubt, to any directions given by the judge on any such application or at any trial. In reaching that conclusion I, too, have taken account of the material available to us today, which is not in all respects the same as that before the judge. In particular, Professor Clarkson has personally explained her position to us and there is further medical evidence in the form of a recent report of Dr Kooner, which was not available to the judge. In all these circumstances I, too, would allow the appeal.
32. ORDER: Appeal allowed; costs here and below to be costs in the proceedings.