Courts and Legal Services Act 1990

Rights of audience and rights to conduct litigationE+W

27 Rights of audience.E+W

(1)The question whether a person has a right of audience before a court, or in relation to any proceedings, shall be determined solely in accordance with the provisions of this Part.

(2)A person shall have a right of audience before a court in relation to any proceedings only in the following cases—

(a)where—

(i)he has a right of audience before that court in relation to those proceedings granted by the appropriate authorised body; and

(ii)that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to F1. . . that right;

(b)where paragraph (a) does not apply but he has a right of audience before that court in relation to those proceedings granted by or under any enactment;

(c)where paragraph (a) does not apply but he has a right of audience granted by that court in relation to those proceedings;

(d)where he is a party to those proceedings and would have had a right of audience, in his capacity as such a party, if this Act had not been passed; or

(e)where—

(i)he is employed (whether wholly or in part), or is otherwise engaged, to assist in the conduct of litigation and is doing so under instructions given (either generally or in relation to the proceedings) by a qualified litigator; and

(ii)the proceedings are being heard in chambers in the High Court or a county court and are not reserved family proceedings.

[F2(2A)Every person who exercises before any court a right of audience granted by an authorised body has—

(a)a duty to the court to act with independence in the interests of justice; and

(b)a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.]

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Nothing in this section affects the power of any court in any proceedings to refuse to hear a person (for reasons which apply to him as an individual) who would otherwise have a right of audience before the court in relation to those proceedings.

(5)Where a court refuses to hear a person as mentioned in subsection (4) it shall give its reasons for refusing.

F3(6). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7)Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right of audience in relation to any particular court or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.

(8)Where—

(a)immediately before the commencement of this section; or

(b)by virtue of any provision made by or under an enactment passed subsequently,

a court does not permit the appearance of advocates, or permits the appearance of advocates only with leave, no person shall have a right of audience before that court, in relation to any proceedings, solely by virtue of the provisions of this section.

[F4(8A)But a court may not limit the right to appear before the court in any proceedings to only some of those who have the right by virtue of the provisions of this section.]

(9)In this section—

• “advocate”, in relation to any proceedings, means any person exercising a right of audience as a representative of, or on behalf of, any party to the proceedings;

• “authorised body” means—

(a)the General Council of the Bar;

(b)the Law Society; and

(c)any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;

• “appropriate authorised body”, in relation to any person claiming to be entitled to any right of audience by virtue of subsection (2)(a), means the authorised body—

(a)granting that right; and

(b)of which that person is a member;

• “family proceedings” has the same meaning as in the M1Matrimonial and Family Proceedings Act 1984 and also includes any other proceedings which are family proceedings for the purposes of the Children Act 1989;

• “qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to [F5, or to exercise,] any right of audience granted by it;

• “qualified litigator” means—

  (i)

  any practising solicitor [F6(that is, one who has a practising certificate in force or is employed wholly or mainly for the purpose of providing legal services to his employer)];

  (ii)

  any recognised body; and

  (iii)

  any person who is exempt from the requirement to hold a practising certificate by virtue of section 88 of the Solicitors Act 1974 (saving for solicitors to public departments and the City of London);

• “recognised body” means any body recognised under section 9 of the M2Administration of Justice Act 1985 (incorporated practices);

• “reserved family proceedings” means such category of family proceedings as the [F7Secretary of State] may, after consulting the President of the Law Society and with the concurrence of the President of the Family Division, by order prescribe; and

• “rules of conduct”, in relation to an authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right of audience granted by it.

(10)Section 20 of the M3Solicitors Act 1974 (unqualified person not to act as a solicitor) section 22 of that Act (unqualified person not to prepare certain documents etc) and section 25 of that Act (costs where an unqualified person acts as a solicitor), shall not apply in relation to any act done in the exercise of a right of audience.

28 Rights to conduct litigation.E+W

(1)The question whether a person has a right to conduct litigation, or any category of litigation, shall be determined solely in accordance with the provisions of this Part.

(2)A person shall have a right to conduct litigation in relation to any proceedings only in the following cases—

(a)where—

(i)he has a right to conduct litigation in relation to those proceedings granted by the appropriate authorised body; and

(ii)that body’s qualification regulations and rules of conduct have been approved for the purposes of this section, in relation to F8. . . that right;

(b)where paragraph (a) does not apply but he has a right to conduct litigation in relation to those proceedings granted by or under any enactment;

(c)where paragraph (a) does not apply but he has a right to conduct litigation granted by that court in relation to those proceedings;

(d)where he is a party to those proceedings and would have had a right to conduct the litigation, in his capacity as such a party, if this Act had not been passed.

[F9(2A)Every person who exercises in relation to proceedings in any court a right to conduct litigation granted by an authorised body has—

(a)a duty to the court to act with independence in the interests of justice; and

(b)a duty to comply with rules of conduct of the body relating to the right and approved for the purposes of this section;

and those duties shall override any obligation which the person may have (otherwise than under the criminal law) if it is inconsistent with them.]

(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Where, immediately before the commencement of this section, no restriction was placed on the persons entitled to exercise any right to conduct litigation in relation to a particular court, or in relation to particular proceedings, nothing in this section shall be taken to place any such restriction on any person.

[F10(4A)A court may not limit the right to conduct litigation in relation to proceedings before the court to only some of those who have the right by virtue of the provisions of this section.]

(5)In this section—

• “authorised body” means—

(a)the Law Society; F11. . .

[F12(aa)the General Council of the Bar;

(ab)the Institute of Legal Executives; and]

(b)any professional or other body which has been designated by Order in Council as an authorised body for the purposes of this section;

• “appropriate authorised body”, in relation to any person claiming to be entitled to any right to conduct litigation by virtue of subsection (2)(a), means the authorised body—

(a)granting that right; and

(b)of which that person is a member;

• “qualification regulations”, in relation to an authorised body, means regulations (however they may be described) as to the education and training which members of that body must receive in order to be entitled to [F13, or to exercise,] any right to conduct litigation granted by it; and

• “rules of conduct”, in relation to any authorised body, means rules (however they may be described) as to the conduct required of members of that body in exercising any right to conduct litigation granted by it.

[F14(5A)Nothing in this section shall be taken to require the General Council of the Bar or the Institute of Legal Executives to grant a right to conduct litigation.]

(6)Section 20 of the M4Solicitors Act 1974 (unqualified person not to act as a solicitor), section 22 of that Act (unqualified person not to prepare certain documents etc.) and section 25 of that Act (costs where unqualified person acts as a solicitor) shall not apply in relation to any act done in the exercise of a right to conduct litigation.

[F1529 Authorised bodies.E+W

The provisions of Schedule 4 shall have effect with respect to the authorisation of bodies for the purposes of sections 27 and 28 and the approval and alteration of qualification regulations and rules of conduct.]

F1630. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F1731 Barristers and solicitors.E+W

(1)Every barrister shall be deemed to have been granted by the General Council of the Bar a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the General Council of the Bar approved for the purposes of section 27 in relation to the right).

(2)Every solicitor shall be deemed to have been granted by the Law Society—

(a)a right of audience before every court in relation to all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 27 in relation to the right); and

(b)a right to conduct litigation in relation to every court and all proceedings (exercisable in accordance with the qualification regulations and rules of conduct of the Law Society approved for the purposes of section 28 in relation to the right).

(3)A person shall not have a right of audience by virtue of subsection (1) if—

(a)he has not been called to the Bar by an Inn of Court; or

(b)he has been disbarred, or is temporarily suspended from practice, by order of an Inn of Court.]

[F1831A Employed advocates.E+W

(1)Where a person who has a right of audience granted by an authorised body is employed as a Crown Prosecutor or in any other description of employment, any qualification regulations or rules of conduct of the body relating to that right which fall within subsection (2) shall not have effect in relation to him.

(2)Qualification regulations or rules of conduct relating to a right granted by a body fall within this subsection if—

(a)they limit the courts before which, or proceedings in which, that right may be exercised by members of the body who are employed or limit the circumstances in which that right may be exercised by them by requiring them to be accompanied by some other person when exercising it; and

(b)they do not impose the same limitation on members of the body who have the right but are not employed.]

[F1931B Advocates and litigators employed by Legal Services Commission.E+W

(1)Where a person who has a right of audience or right to conduct litigation granted by an authorised body is employed by the Legal Services Commission, or by any body established and maintained by the Legal Services Commission, any rules of the authorised body which fall within subsection (2) shall not have effect in relation to him.

(2)Rules of a body fall within this subsection if they are—

(a)rules of conduct prohibiting or limiting the exercise of the right on behalf of members of the public by members of the body who are employees; or

(b)rules of any other description prohibiting or limiting the provision of legal services to members of the public by such members of the body,

and either of the conditions specified in subsection (3) is satisfied.

(3)Those conditions are—

(a)that the prohibition or limitation is on the exercise of the right, or the provision of the services, otherwise than on the instructions of solicitors (or other persons acting for the members of the public); and

(b)that the rules do not impose the same prohibition or limitation on members of the body who have the right but are not employees.]

[F2031C Change of authorised body.E+W

(1)Where a person—

(a)has at any time had, and been entitled to exercise, a right of audience before a court in relation to proceedings of any description granted by one authorised body; and

(b)becomes a member of another authorised body and has a right of audience before that court in relation to that description of proceedings granted by that body,

any qualification regulations of that body relating to that right shall not have effect in relation to him.

(2)Subsection (1) does not apply in relation to any qualification regulations to the extent that they impose requirements relating to continuing education or training which have effect in relation to the exercise of the right by all members of the body who have the right.

(3)Subsection (1) does not apply to a person if he has been banned from exercising the right of audience by the body mentioned in paragraph (a) of that subsection as a result of disciplinary proceedings and that body has not lifted the ban.]

F2132. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F2233. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .