D (A Child), Re

Rights of audience may be granted to a person assisting a litigant in person only in exceptional circumstances and after careful consideration under sections 27 and 28 of the Courts and Legal Services Act 1990. The power is discretionary but subject to stringent limits. Where both parties are litigants in person, fairness and parity are important. A previous permission granted at a hearing without notice and without objection does not determine a later on-notice application where objection is made. The fact that the proposed advocate could present the applicant’s case more effectively is insufficient where his professional circumstances weigh strongly against the grant.

Mrs Francis, appearing in person, applied to the Court of Appeal for permission for her Mackenzie Friend and partner, Mr Ty Francis, to have rights of audience. He was a solicitor struck from the Rolls by the Solicitors Disciplinary Tribunal. Her former husband, also a litigant in person, objected. At an earlier hearing before Black J on 4 November 2004, held without notice, Mr Francis had been allowed to speak because no objection was taken. The matter came from Cardiff Civil Justice Centre before His Honour Judge Masterman. The central issue was whether the exceptional circumstances required for the grant of rights of audience were established.

Application refused. Lord Justice Thorpe gave the judgment, and Lord Justice Hooper agreed.

1. Sections 27 and 28 of the Courts and Legal Services Act 1990 confer a discretionary power to grant rights of audience, but impose stringent restrictions. The court may exercise the power only in exceptional circumstances and after careful consideration. Guidance issued by the President’s office for judges of the Family Division was a useful guide insofar as it recorded those statutory provisions.
2. The earlier permission granted by Black J did not determine the present application. That hearing was without notice and no objection had been taken. An on-notice hearing at which the opposing litigant objects involves different considerations.
3. Fairness and parity are important where both parties appear in person. The respondent was himself a litigant in person and considered Mrs Francis to be equally competent to present her case.
4. The court accepted that Mr Francis, as an experienced lawyer with advocacy skills, could probably present the case more effectively. That fact alone did not justify granting rights of audience. His professional circumstances, particularly that he had been struck from the Roll, militated strongly against the application. As a matter of principle and fairness, the application was therefore refused.

• Court of Appeal (Civil Division) — In [2005] EWCA Civ 347, the court refused the application for permission to grant Mr Ty Francis rights of audience.
• Cardiff Civil Justice Centre — The matter came on appeal from that court, before His Honour Judge Masterman. No lower-court citation or operative order is stated.
• Earlier hearing — On 4 November 2004, Black J allowed Mr Francis to speak at a hearing without notice and without objection. That permission did not determine the present on-notice application.