Clarkson v Gilbert & Ors

Factual and Procedural Background

The appeal arises from a decision by Judge A on 16 December 1999, which set aside an ex parte order originally granted by Judge B on 14 May 1999. The initial order allowed the Plaintiff's husband, who holds a law degree and has completed Bar finals but has not been called to the Bar, to have rights of audience in the litigation on behalf of the Plaintiff pursuant to section 27(2)(c) of the Courts and Legal Services Act 1990 (as amended).

The Plaintiff is a psychotherapist and founding member of an institute providing training and accreditation for psychotherapists. The Defendants, also psychotherapists and members of the same institute, were involved in the suspension of the Plaintiff from membership in November 1997 due to difficulties her continued membership posed for the institute's business. The Plaintiff was formally notified of her suspension in February 1998 and unsuccessfully appealed. Subsequently, the Plaintiff initiated proceedings against multiple Defendants alleging conspiracy, inducement to breach contract, and libel. Separate proceedings were also issued against the chairman of another institute's management committee.

The husband of the Plaintiff sought rights of audience to represent her, citing her ill health—specifically an angina attack and depression—and lack of financial means to retain legal representation. The evidence supporting her ill health was limited and outdated. The Defendants challenged the ex parte order on the basis of insufficient material and raised concerns about the husband's conduct and qualifications. The court considered statutory provisions governing rights of audience and the need for discretion in granting such rights to unqualified persons, particularly close relatives.

Legal Issues Presented

1. Whether the Plaintiff's husband should be granted rights of audience under section 27(2)(c) of the Courts and Legal Services Act 1990 to represent the Plaintiff in the litigation.
2. What standards and discretion the court should apply when considering granting rights of audience to a close relative who is not a qualified advocate.
3. Whether exceptional circumstances are required to justify granting such rights of audience to an unqualified person, especially a family member.

Arguments of the Parties

Appellant's Arguments

• The Plaintiff's ill health, including a history of angina and depression, justifies the need for her husband to act as advocate.
• The Plaintiff lacks financial means to obtain legal representation, having unsuccessfully sought conditional fee arrangements and pro bono assistance.
• The husband, despite not being called to the Bar, has a law degree and has completed Bar finals, and thus is suitably qualified to assist.
• The husband holds a Power of Attorney from the Plaintiff granting him control over the litigation, evidencing her support.

Respondents' Arguments

• The ex parte order was improperly granted without sufficient material, particularly inadequate and outdated medical evidence.
• The husband’s conduct was questionable, including inappropriate self-description as an advocate of the High Court.
• Rights of audience should be strictly controlled in the interests of justice and the proper administration of the courts.
• Granting rights of audience to an unqualified person risks undermining the statutory framework and professional standards.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by examining the statutory framework under the Courts and Legal Services Act 1990, particularly section 27(2)(c), which allows courts discretion to grant rights of audience to persons not otherwise entitled. The court emphasized the importance of maintaining the proper administration of justice and the necessity of controlling who may appear as advocates before the court.

It acknowledged that litigants in person have the right to conduct their own litigation but that the assistance of an unqualified advocate requires justification. The court noted the difficulty in reconciling a close family member, such as a husband, acting as advocate with statutory duties to act independently and comply with professional conduct rules, which may not apply to unqualified persons.

The court found the initial medical evidence supporting the Plaintiff's ill health to be weak and outdated but accepted that more recent medical evidence was submitted late in the appeal. The court also considered the procedural irregularity of the ex parte application made by the husband rather than the Plaintiff herself and stressed the importance of the litigant in person being present to make such applications, allowing the court to assess the circumstances directly.

Relying on the guidance in D v S, the court clarified that the test of exceptional circumstances applies more strictly to unqualified advocates offering advocacy services generally, but the position differs for close relatives acting for family members. The court concluded that the discretion under section 27(2)(c) should be exercised based on the specific circumstances, balancing the interests of justice and the need to avoid undermining the statutory scheme.

After personally hearing from the Plaintiff and considering the additional medical evidence, the court determined that it was just and appropriate to allow the husband to have rights of audience to assist the Plaintiff in the litigation.

Holding and Implications

The court ALLOWED THE APPEAL, restoring the original order granting the Plaintiff's husband rights of audience in the proceedings.

The direct effect of this decision is that the Plaintiff's husband may represent her as an advocate in the litigation, including at trial and interlocutory hearings. The court emphasized the necessity of careful judicial scrutiny before granting rights of audience to unqualified persons to protect the administration of justice. No new legal precedent was established beyond clarifying the appropriate exercise of discretion in cases involving close relatives acting as advocates.