Clarkson v Gilbert & Ors

Under section 27(2)(c) of the Courts and Legal Services Act 1990, the court has a discretion to grant an unqualified person rights of audience. The discretion is not confined to exceptional circumstances where the proposed advocate is a close family member assisting a litigant in person. The court must consider all the circumstances, the statutory objectives, the proper administration of justice and whether there is good reason to permit the representation. The litigant should ordinarily make the application personally, in the presence of the proposed representative and the opposing party. Health, lack of means and the need for effective access to justice may justify the order, but the court must guard against the unnecessary conferral of advocacy rights on unqualified persons.

The claimant, a psychotherapist, brought proceedings against fellow members of a psychotherapy institute. Morland J made an ex parte order granting her husband rights of audience under section 27(2)(c) of the Courts and Legal Services Act 1990. Eady J subsequently set that order aside, considering that the statutory discretion could be exercised only in exceptional circumstances, following D v S [1997] 1 FLR 724.

The claimant appealed. The central issue was whether the exceptional-circumstances test applied where the proposed unqualified advocate was the claimant’s husband, and whether the Court of Appeal should exercise the statutory discretion on the material before it.

1. Appeal allowed. The Court restored Morland J’s order granting Mr Keter rights of audience for the claimant. Costs in the Court of Appeal and below were costs in the proceedings.
2. Section 27(2)(c) confers a discretion. It does not impose an exceptional-circumstances threshold in every case. The discretion must be exercised in the light of the statutory objectives in sections 17(1) and 17(3), including the development of legal services while maintaining the proper and efficient administration of justice.
3. The distinction between an unqualified person offering advocacy services generally and a close relative assisting a litigant in person is material. In the former case, exceptional circumstances may properly be required, as explained in D v S [1997] 1 FLR 724. That approach was applied too strictly to a husband seeking to assist his wife.
4. The court should ask whether, in all the circumstances, there is good reason, or whether it is just, to permit the proposed representative to speak. Relevant considerations may include the litigant’s health, lack of means, genuine wish for assistance, and whether the court is likely to receive proper assistance. The court must also consider the risks arising from the representative’s lack of professional duties and independence.
5. The application should ordinarily be made by the litigant personally at an inter partes hearing, with the litigant, proposed representative and opposing party present. The litigant remains responsible for conducting the litigation unless a separate order permits otherwise, and should normally remain involved in proceedings affecting her interests.
6. Lord Woolf, Lord Justice Waller and Lord Justice Clarke agreed that the available medical evidence and the claimant’s personal explanation justified the order. The court should satisfy itself that granting rights of audience is appropriate, but should do so summarily and proportionately.

• Court of Appeal (Civil Division): Appeal from Eady J allowed; Morland J’s order granting the claimant’s husband rights of audience was restored.
• High Court, Queen’s Bench Division: Eady J set aside Morland J’s ex parte order. Permission to appeal was granted.
• High Court, Queen’s Bench Division: Morland J made the original order on 14 May 1999 under section 27(2)(c) of the Courts and Legal Services Act 1990.