2

The following activites are "reserved legal activities" per the Legal Services Act 2007 ("LSA 2007"), s 12(1):

(a) the exercise of a right of audience; (b) the conduct of litigation

Only authorised and exempt persons are allowed to carry out reserved legal activities (LSA 2007, s 13). In relation to the exercise of a right of audience, a person is exempt if they have "a right of audience before that court in relation to those proceedings granted by or under any enactment" (LSA 2007, s 19 and sch 3(1)(3)).

The Courts and Legal Services Act 1990, s 11(1) provides that:

The Lord Chancellor [may] by order provide that there shall be no restriction on the persons who may exercise rights of audience, or rights to conduct litigation, in relation to proceedings in the county court of such a kind as may be specified in the order.

Such an order has been passed in relation to rights of audience for the small claims track of the County Court. The Lay Representatives (Rights of Audience) Order 1999, art 3(1) provides that:

[any] person may exercise rights of audience in proceedings dealt with as a small claim in accordance with rules of court.

I have checked Westlaw and there does not appear to be an equivalent order made under the Act for the conduct of litigation.

The right of audience is confirmed in the Civil Procedure Rules in relation to the small claims track. CPR 27 PD 3.2(1): "A party may present his own case at a hearing or a lawyer or lay representative may present it for him" and CPR 27 PD 3.2(4): "Any of its officers or employees may represent a corporate party."

Further rights are granted to company representatives for other tracks. CPR 39.6: "A company or other corporation may be represented at trial by an employee if (a) the employee has been authorised by the company or corporation to appear at trial on its behalf; and (b) the court gives permission."

My question: is there any associated exemption for the conduct of litigation, to mirror the rights of audience for lay representatives? It seems somewhat strange that a lay representative on the small claims track can address the judge and interview witnesses, but cannot issue the claim or conduct any other ancillary administrative tasks relating to the proceedings. On the other hands, I believe barristers using the direct access scheme face a similar restriction so perhaps this is a deliberate omission in the exemptions.

3
  • What jurisdiction are you asking about?
    – sharur
    Nov 5, 2020 at 14:35
  • 1
    @sharur Apologies, it's E&W as the above comment suggests. I forgot to include the tag.
    – JBentley
    Nov 5, 2020 at 15:02
  • Do you think it’s a measure for parity with restrictions on DA barristers, themselves seemingly relics of the solicitor/barrister labour divide? Feb 28, 2023 at 2:21

1 Answer 1

2

I too cannot find anything that exempts a lay representative from conducting litigation, but it is extremely difficult to prove a negative.

My assumption is that it is a deliberate decision due to the lack of any regulatory oversight that could impose sanctions on a lay representative outside of the court; the judge, obviously, can perform this function within it.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .