Paragon Finance plc v Noueiri

A court may use its inherent jurisdiction to restrain an unqualified person whose activities interfere with the proper administration of justice. Rights of audience and the right to conduct litigation are governed exclusively by Part II of the Courts and Legal Services Act 1990.

An unqualified person may exercise either right in particular proceedings only through a specific grant by the court. A right of audience should be granted only in exceptional circumstances, especially where the person regularly represents litigants. A specific right to conduct litigation carries an implied power of withdrawal if abused.

A McKenzie friend assists the litigant but has no independent right to act or address the court. Assistance may be terminated where it obstructs justice or places the litigation effectively under the friend’s control.

Following the dismissal of three applications made by Mr Noueiri, the Court of Appeal adjourned consideration of whether Mr Anthony Alexander’s activities as an unqualified lay representative should be restricted. The RCJ Advice Bureau intervened, and counsel instructed through the Attorney-General assisted the court.

The evidence concerned Mr Alexander’s advocacy and conduct of litigation for vulnerable litigants. In Mr Noueiri’s mortgage-possession proceedings, he had pursued repeated applications after permission to appeal had been refused. The court also considered his representation of Mr Mensah and evidence that he regularly held himself out as an advocate despite lacking a recognised professional qualification.

The central questions were whether the court had jurisdiction to restrain those activities, what rights an unqualified representative could obtain under the Courts and Legal Services Act 1990, and whether a permanent protective order was justified.

1. The court unanimously made the restraint permanent. Its inherent jurisdiction to protect its process was extensive and included power to restrain anticipated interference with the administration of justice. Its appellate jurisdiction also supplied the authority of the courts from which the relevant appeals had come. The order was confined to activities within the Royal Courts of Justice.

2. Part II of the Courts and Legal Services Act 1990 exclusively governed rights of audience and the right to conduct litigation. An unqualified person without an independently conferred right could act as an advocate only if the court granted a right of audience for the particular proceedings under section 27(2)(c). Following D v S (rights of audience) [1997] 1 FLR 724, that discretion was exercisable only in exceptional circumstances. Courts should be especially slow to confer such rights on someone who regularly sought to represent otherwise unrepresented litigants.

3. A McKenzie friend had no independent right to act. The relevant right belonged to the litigant, who ordinarily should receive reasonable assistance unless fairness and the interests of justice required otherwise. A McKenzie friend could not address the court without becoming an advocate requiring a right of audience. The court could terminate the assistance where it impeded efficient justice, indirectly placed the case under the friend’s control, or reduced the litigant to a puppet.

4. Section 28(2)(c) permitted a court to confer a right to conduct litigation for particular proceedings. The power to grant that right necessarily included an implied power to withdraw it if abused. Purporting to conduct litigation or exercise a right of audience without authority was both a criminal offence and a contempt. Section 20 of the Solicitors Act 1974 separately prohibited an unqualified person from acting as a solicitor, subject to rights validly conferred under the 1990 Act.

5. The Convention did not prevent the order. Mr Alexander received a fair hearing. Any interference with private life was justified to protect the rights and freedoms of others, while reasonable restrictions could be placed on a litigant’s choice of representative.

6. The evidence established that Mr Alexander had repeatedly advanced hopeless proceedings, practised advocacy in a manner Parliament had not intended, and posed a serious risk to litigants and the administration of justice. The court restrained him and companies controlled by him from taking any step within the Royal Courts of Justice on another person’s behalf without written leave of the High Court or Court of Appeal. Permission to appeal to the House of Lords was refused.

1. Court of Appeal: By the present judgment, the court made permanent the interim order restraining Mr Alexander’s activities within the Royal Courts of Justice and refused permission to appeal to the House of Lords.
2. Court of Appeal: On 4 July 2001, the court dismissed Mr Noueiri’s three applications and adjourned consideration of an order restricting Mr Alexander’s activities: [2001] EWCA 1114.
3. Court of Appeal, single judge: Keene LJ refused permission for a second appeal on 24 April 2001 and subsequently struck out a further futile application.
4. County Court: Judge Krikler dismissed Mr Noueiri’s appeal from the refusal to set aside a possession order and warrant. Mr Recorder Rayner James later refused to continue a temporary stay.