Abse v Smith

JurisdictionEngland & Wales
CourtCourt of Appeal
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE MAY,LORD JUSTICE GLIDEWELL
Judgment Date11 Dec 1985
Judgment citation (vLex)[1985] EWCA Civ J1211-1
Docket Number85/0828

[1985] EWCA Civ J1211-1

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(MR. JUSTICE LEONARD)

Royal Courts of Justice.

Before:

The Master of the Rolls

(Sir John Donaldson)

Lord Justice May

and

Lord Justice Glidewell

85/0828

Leo Abse & Ors.
(Plaintiffs)
and
Cyril Smith
(First Defendant) Appellant

and

Radio Trent Limited
(Second Defendants)

MR. ANDREW COLLINS, Q.C. (instructed by the Treasury Solicitor) appeared as amicus curaie.

MR. DAVID PANNICK (instructed by Alastair Brett, Esq.) appeared on behalf of the Appellant.

THE MASTER OF THE ROLLS
1

All the parties to this appeal are well known in public life, but the appeal itself is only marginally about their dispute. Essentially it is about the parts played by the two branches of the legal profession in the administration of justice. As such it is of no little public interest and importance.

2

The story begins in June 1982 when Mr. Cyril Smith M.P. gave an interview to Radio Trent. It was the time of the Falklands crisis and Mr. Smith commented adversely on the conduct of Mr. Leo Abse M.P. and other members of Parliament in voting as they did. The word "treason" was mentioned. The interview was broadcast and Mr. Abse, together with 24 other members of Parliament, sued Mr. Smith and Radio Trent for libel. As is not unusual in such cases, time has proved a great healer and by November 1984 the parties had agreed that the matter could be settled by an explanation and apology in the form of a statement in open court pursuant to R.S.C. Order 82 rule 5(2).

3

This procedure involves the preparation of an agreed script of what the parties or their counsel intend to say in open court and its approval by the judge before whom they will be appearing. The first draft of the agreed statement was prepared by Mr. Alastair Brett, who is a solicitor. It appears that his primary employment is as Senior Legal Assistant with Times Newspapers Limited, the publishers of the Times and the Sunday Times, but that, with the consent of his employers, he also has a small private practice based upon his home address, most of his clients being personal friends. It was in the context of this private practice that Mr. Brett came to advise Mr. Smith in the capacity of London agent for Mr. Smith's Rochdale solicitors. The draft agreed statement was circulated to other parties to the action and approved by them with minor modifications. Mr. Brett then consulted very experienced counsel who had settled the defence (not Mr. Pannick) and he approved the draft with one amendment. This in turn was accepted by all the parties.

4

All that then remained was for arrangements to be made for the statement to be made in open court and this task was entrusted, to counsel's clerk. On the 2nd October, 1985 counsel's clerk told Mr. Brett that the statement could be made on the 7th October. It seems that at this stage Mr. Brett, for the first time, enquired what would be counsel's fee for this appearance. He was quoted a figure which he has characterised as "ridiculously expensive". Upon further enquiry whether less experienced counsel would appear for a lesser fee, it emerged that the fee of the most junior member of the chambers would be one which Mr. Brett considered to be "unnecessarily expensive". In this situation Mr. Brett decided that he would seek the leave of the court himself to appear and to read the statement on behalf of Mr. Smith. With this in view, he saw Mr. Justice Leonard, the judge concerned, on the 4th October, 1985 in his private room. The learned judge considered that to give his consent would involve a departure from the general practice of the courts and that, in the circumstances, he should hear argument in open court before reaching a conclusion. He also considered that he would need the assistance of an amicus. A new date was therefore fixed for the hearing, namely the 18th October, 1985.

5

At this stage it appears that both Mr. Brett's employers, Times Newspapers Ltd., and the Law Society became interested and they agreed to defray the cost of instructing Mr. Pannick to appear on behalf of Mr. Smith and to submit that Mr. Brett should be allowed to read the statement in open court. Mr. R. Griffiths, of counsel, appeared as amicus curiae.

6

The learned judge was referred to various authorities and accepted that he had a discretion in a situation of emergency to allow a solicitor to appear on behalf of his client and to address the High Court in open court, as contrasted with chambers. However, it was not suggested that this was such a situation. All that was said was that no skills as an advocate were involved in this particular appearance, the Royal Commission on Legal Services had recommended that solicitors should be heard by the superior courts where proceedings were formal or unopposed which, it was submitted, was the case here and that, bearing in mind Mr. Brett's authorship of the statement, it would be more appropriate and economical that it should be read by him rather than by specially briefed counsel.

7

The learned judge refused the application, saying, "It seems to me that if there were a general discretion in the court to allow persons other than barristers to appear before the court the situation which is in contemplation in the present case is the sort of situation which might attract the discretion of the court in its favour, because there seems to be no possibility of real complication arising from the mere making of a prepared statement in open court. So the real issue in this case, as it seems to me, is whether there is a general discretion.…I do not think that I am in a position where I can make a general exception by exercising a general discretion in favour of solicitors being allowed to read statements in open court. This, I emphasise, is not, as other cases have been, a question of emergency. There is no established practice which would allow Mr. Brett to read the statement. I do not think that it is within my power at this stage to alter the established practice in a general way. I emphasise that by deciding the matter in that way I am not putting Mr. Smith in any real difficulty. If he wanted to he could come and address the court himself."

8

Mr. Smith has appealed to this court and Mr. Pannick has again appeared on his behalf. No other party to the action has appeared or been represented, but we have received invaluable assistance from Mr. Andrew Collins, Q.C. as amicus curiae, who was instructed at short notice following an application by Mr. Pannick which led us to believe, mistakenly as I now know, that the settlement of the action might be imperilled by any delay. In the event there has been the fullest argument and we have now to address ourselves to the following issues:

  • (1) Was Mr. Justice Leonard mistaken in thinking that, in the circumstances of this case, he had no discretion to permit a solicitor to appear on behalf of Mr. Smith?

  • (2) If he was so mistaken, should he have exercised that discretion in favour of granting permission and, on appeal, should we do so?

  • (3) If he was right, have we any greater discretion on appeal and, if so, how should we exercise it?

  • (4) If neither he nor we have such a discretion, have the judges generally, or the judges of the High Court and the judges of the Court of Appeal separately, in relation to their respective courts, any power to change the general practice of the court to grant audience only to litigants in person or to counsel?

9

No decision on this last issue is necessary for the determination of this appeal, but I have no doubt that it is in the public interest that we should consider it. I say this because both branches of the legal profession and the Lord Chancellor's Department have under consideration the desirability of changes in the general practice of the courts and they need to know what are the powers of the judiciary in this context. Whether, assuming that the judges have such powers, they should exercise them is not, of course, a matter for a single division of the Court of Appeal and I propose to express no view on that aspect.

10

Limitation of the categories of persons whom courts are prepared to hear as advocates for parties to proceedings before them is, so far as I know, a feature of all developed systems for the administration of justice. In our own jurisdiction the categories are defined by reference to the possession of particular professional qualifications, there being no limitation in the case of members of the Bar and some, but very far from total, limitation in the case of members of the solicitors' branch of the profession. In many, and possibly most, other jurisdictions it takes the form of "licensing" individual lawyers to practise in specified courts or courts at a particular level or courts in a particular district, province or state. I use the word "licensing", not in a strict or technical sense, but as indicating some formality which directly or indirectly grants the lawyer a standing permission to appear before and practise in the court concerned. Occasionally in Commonwealth countries the "licence" is granted to a lawyer with an overseas legal qualification and is limited to appearing before that court in a particular cause or matter.

11

These limitations are not introduced in the interests of the lawyers concerned, but in the public interest. The conduct of litigation in terms of presenting the contentions of the parties in a concise and logical form, deploying and testing the evidence and examining the relevant law demands professional skills of a high order. Failure to display these skills will inevitably extend the time needed...

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