Francis & Ors v Barton Bridging Capital Ltd & Anor

The court refused to permit an unqualified lay advocate (Mr Impegwa) to continue to address the court or to act as an advocate for the applicants. The decision applied the Legal Services Act 2007 framework on reserved legal activities (in particular the concepts of right of audience and exempt persons under Schedule 3) and relevant authority on McKenzie friends and rights of audience, notably Re N (A Child) and Clarkson v Gilbert. The judge balanced competing considerations: the applicants' practical difficulty in conducting complex, potentially lengthy litigation and the risk that refusing the advocate would prevent the claims being pursued, against public protection and defendants' interests, the absence of legal qualifications, the seriousness of the allegations proposed, a clear conflict of interest between the applicants, concerns about lack of safeguards and possible charging for services. On balance the factors against permitting the advocate were stronger and permission to continue was refused.

This is a first-instance judgment dealing with an application for rights of audience by a lay person acting as an advocate for litigants (a McKenzie friend type role) in continuing litigation arising from a mortgage and possession dispute. The underlying claim by Mrs Francis sought, among other things, injunctive relief restraining disposal of 45 Barcombe Avenue, permission to bring contempt proceedings, restoration of title, setting aside of a mortgage and recovery of personal belongings; the draft amended claim proposed to add her two sons as co-claimants and multiple defendants.

The immediate application before the court was whether Mr Impegwa should be permitted to address the court as advocate for Mrs Francis and her sons. The court identified the relevant legal framework in the Legal Services Act 2007 (reserved legal activities, rights of audience, Schedule 3 exemptions) and earlier authority on the exercise of the court's discretion to permit non-qualified advocates, in particular Re N (A Child) (Munby J) and the Court of Appeal decision in Clarkson v Gilbert.

The judge examined factual matters put before the court: prior procedural history in the County Court and High Court, Mr Impegwa's background (not legally qualified but articulate, with prior appearances), lack of a CV as recommended in the Practice Note on McKenzie friends, uncertainty about whether he charged for his services, and the nature of the proposed claims which included grave allegations of conspiracy and dishonesty. The court identified key issues to be decided:

• whether the lay advocate was entitled to a right of audience under Schedule 3 exemptions;
• the weight to be given to the applicants' likely inability to present their case without assistance;
• the risk to defendants from unregulated advocacy, including the making of serious allegations without professional safeguards;
• the existence of a clear conflict of interest between the applicants (mother and two sons) that a qualified lawyer would not accept.

Applying the guidance in Re N and Clarkson, the judge balanced these considerations and concluded that the arguments against permitting Mr Impegwa to act as advocate substantially outweighed those in favour. The application for a right of audience was refused and Mr Impegwa was not permitted to address the court further on the application.

This is a first instance decision refusing the application for a right of audience by an unqualified lay advocate. The judge refused permission because the risk to public protection and to the defendants (including the absence of professional safeguards when very serious allegations were proposed, the clear conflict of interest between the claimants, uncertainty over charging for advocacy, and lack of relevant legal qualifications and experience) outweighed the applicants' need for assistance. The court exercised its discretion under the Legal Services Act 2007 and applicable authority (Re N and Clarkson) to deny the right of audience.