D v S

The statutory discretion to grant rights of audience to a person who does not otherwise possess them must be exercised within the framework established by Parliament. It is available only in exceptional circumstances. A court must consider the collective effect of repeated individual grants and must not permit an unqualified person to bypass the stringent requirements imposed on those who ordinarily have rights of audience. The consent of the parties cannot justify the grant. Practical usefulness does not displace the statutory scheme.

The case arose in the Court of Appeal on an application for leave to appeal from the Milton Keynes County Court, where His Honour Judge Tyrer had presided. Dr Pelling, who had assisted litigants in family proceedings and had sometimes been granted advocacy rights, sought rights of audience in relation to the application for leave.

The central issue was whether the discretion under the Courts and Legal Services Act 1990 permitted the court to grant him rights of audience, particularly where the parties did not object.

1. Application refused. The Master of the Rolls, with whom Waite LJ and Waller LJ agreed, declined to grant Dr Pelling rights of audience on the application for leave.
2. The Courts and Legal Services Act 1990 gives the court a discretion concerning rights of audience, but the statutory scheme as a whole shows that the discretion is to be exercised only in exceptional circumstances. Sections 17 and 18 provide the governing framework. Section 28 confirms that the right to conduct litigation is determined solely in accordance with Part II of the Act.
3. The court followed the approach in Chauhan v Chauhan. Experience, specialist knowledge, low cost and possible assistance to litigants or the court do not justify bypassing the statutory requirements applicable to ordinary rights of audience.
4. The court gave guidance for future applications by Dr Pelling and persons in a similar position. Courts should pause long before granting advocacy rights because repeated case-by-case grants could collectively enable the statutory safeguards to be circumvented. The question is one for the court, not the parties. Consent is therefore insufficient.
5. The court recognised the practical value of Dr Pelling’s assistance, but held that usefulness could not override Parliament’s scheme or permit others to replicate the arrangement without satisfying the statutory requirements.

• Court of Appeal (Civil Division): On an application for leave to appeal from the Milton Keynes County Court, the court refused Dr Pelling’s application for rights of audience in relation to the leave application.
• Milton Keynes County Court: The matter had been before His Honour Judge Tyrer. No citation for the county court decision is stated in the judgment.