Milne v Kennedy & Ors

The residual discretion to grant rights of audience to a person outside the statutory categories must be exercised only in exceptional circumstances. Efficiency and expedition are necessary considerations, but they do not themselves constitute exceptional circumstances. The court must protect the statutory scheme and must not permit lay representation to bypass the qualifications and safeguards governing ordinary rights of audience. Where the lower court applies the wrong principles, the appellate court may exercise the discretion afresh.

The claimant, a solicitor and committee member of an unincorporated association, brought proceedings against seven fellow committee members. Four defendants wished to be represented by Mrs Mainwaring, an unqualified and untrained litigant who knew the dispute. The Central London County Court granted her rights of audience for the directions hearing and trial.

The claimant appealed. Although the proposed representation had become academic, the Court of Appeal considered the appeal because the court itself had an interest in ensuring that statutory restrictions on rights of audience were observed. The central issue was whether the discretion under Courts and Legal Services Act 1990, section 27(2)(c), had been exercised on correct principles.

1. Appeal allowed. The order giving Mrs Mainwaring leave to appear for the defendants was set aside. There was no order as to costs.
2. The Courts and Legal Services Act 1990 creates a statutory scheme governing rights of audience. Its objective of widening choice in legal services remains subject to the proper and efficient administration of justice.
3. The residual discretion under section 27(2)(c) to grant a right of audience to a person outside the statutory categories is available only in exceptional circumstances. The court must take account of whether the proposed representation would make proceedings more efficient and expeditious, but that is a precondition or relevant consideration, not by itself an exceptional circumstance.
4. The judge below relied on the desirability of inexpensive and efficient representation, but did not identify any exceptional circumstances. He therefore exercised the discretion on wrong principles. The Court of Appeal was entitled to exercise the discretion afresh.
5. The defendants’ lack of funds, the disparity between their resources and those of a solicitor claimant, and Mrs Mainwaring’s knowledge and experience did not amount to exceptional circumstances. Allowing her to appear would bypass the statutory scheme. The court’s own responsibility to regulate rights of audience justified determining the otherwise academic appeal.
6. Lord Justice Waller agreed, emphasising that the court, rather than the opposing party, has the primary interest in ensuring that rights of audience are granted only to appropriate persons. The possible tactical motivation for pursuing the appeal could be considered when costs were determined.

• Court of Appeal (Civil Division): allowed the appeal from the Central London County Court and set aside the order granting Mrs Mainwaring leave to appear.
• Central London County Court: His Honour Judge Rich QC granted Mrs Mainwaring rights of audience for four defendants at the directions hearing and intended trial.