Francis & Ors v Barton Bridging Capital Ltd & Anor

The court’s power to grant a right of audience to an unqualified advocate is fact-sensitive. The court should distinguish between a family member assisting a litigant and a professional, non-qualified advocate offering advocacy services. The latter will generally require exceptional circumstances, whereas that test may be inappropriate for a family member. Relevant considerations include urgency, the seriousness of the allegations, conflicts of interest, regulation, possible remuneration, competence, and the litigant’s practical ability to present the case. The court must balance the applicant’s access to justice against the opposing party’s legitimate interest in protection from unmeritorious allegations and from unregulated advocacy. A right previously granted in urgent proceedings may properly be refused when the litigation has entered a longer and more complex phase.

The applicants sought to add parties and amend claims concerning a mortgage over residential property, including allegations of fraud and other wrongdoing. Mr Impegwa, who was not a qualified lawyer, sought permission to act as advocate for Mrs Francis and her two sons. He had previously been permitted to address the High Court in urgent proceedings, although permission had been refused in county court possession proceedings.

The respondents opposed the application. The central issue was whether, having regard to the Legal Services Act 2007 and the guidance in Clarkson v Gilbert and Re N (A Child), the court should grant Mr Impegwa a right of audience for the present and future proceedings.

1. The application was refused. Mr Impegwa was not permitted to address the court further on the application or to act as advocate for any of the three applicants in this action.

2. Under the Legal Services Act 2007, exercising a right of audience is a reserved legal activity. A person may undertake it only as an authorised or exempt person. The court’s grant of a right of audience under Schedule 3, paragraph 1(2)(b), makes the person exempt for the relevant proceedings. A power of attorney and a statutory right of action do not themselves confer a right of audience.

3. The approach in Clarkson v Gilbert and Re N (A Child) requires attention to the position occupied by the proposed advocate on a spectrum. The court is more ready to permit a family member to assist a litigant. A professional, non-qualified advocate who holds himself out as providing advocacy services will be treated more cautiously, and permission may be appropriate only in exceptional circumstances. The court must avoid imposing the exceptional-circumstances test mechanically where the proposed advocate is a family member.

4. Earlier permission had been granted in urgent circumstances, when eviction and other immediate consequences required the court to obtain information from an articulate person assisting litigants in person. Those circumstances had passed. The present litigation was likely to be lengthy and complex.

5. The factors against permission were compelling. They included uncertainty about remuneration and the absence of professional regulation; the intended serious allegations of dishonesty without evidence of appropriate safeguards; a clear conflict of interest between Mrs Francis and her sons; and Mr Impegwa’s apparent lack of the judgment and experience needed to decide whether applications should be made and how they should be presented. The court recognised that refusal might prevent the claims from proceeding, but concluded that the respondents’ legitimate interests and the applicants’ protection from harmful unregulated advocacy outweighed that consideration.