Rehan Malik v Governor of HM Prison Hindley (No.2)

Written submissions: 17, 19, 20.10.22

Judgment (approved subject to typos) issued 24.10.22

Formal hand-down of judgment 25.10.22

Approved Judgment

I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HON. Mr Justice Fordham

Introduction

The principal issue which I have to determine in this judgment is whether to exercise the statutory power conferred on me by Schedule 3 §1(2)(b) to the Legal Services Act 2007, to allow Michael Shrimpton rights of audience in these habeas corpus proceedings. There is a second area of concern which I will address at the end of this judgment. The circumstances in which the two concerns arose are described in my judgment dated 14 October 2022: see [2022] EWHC 2599 (Admin) (the “First Judgment”). The context, as I have explained ( First Judgment §2), is that Mr Shrimpton was disbarred in September 2018 in disciplinary proceedings arising out of two criminal convictions (see Shrimpton v BSB [2019] EWHC 677 (Admin)) and was the subject of a Solicitors Act 1974 s.43 order in September 2019 (as to which, see Shrimpton v SRA [2021] EWHC 945 (Admin)). The Order which I made ( First Judgment §16) elicited further written observations and materials from Mr Shrimpton and Mr Mirza; the Law Society and Bar Standards Board (“BSB”); the Respondent; and reply observations from Mr Shrimpton. The Court is always grateful for assistance which it receives. But I want to express particular gratitude to the Law Society and BSB who, having chosen to take up the opportunity which I gave, provided full observations and materials at high speed. This is a determination without a further hearing, with the consent of the parties ( First Judgment §16). It warrants a judgment to explain what I decided and why.

So far as commentary on rights of audience is concerned, reference has been made to the White Book Vol. II §§13–13 to 13–20; and the Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881. The authorities which have been cited and provided include in particular: D v S (Rights of Audience) [1997] 1 FLR 724 (CA 18.12.96); Clarkson v Gilbert [2000] 2 FLR 839 (CA 14.6.00); Paragon Finance Plc v Noueiri [2001] EWCA Civ 1402 [2001] 1 WLR 2357 (CA 19.9.01); In Re N (A Child) [2008] EWHC 2042 (Fam) [2008] 1 WLR 2743 (Munby J 20.8.08); Francis v Barton Bridging Capital Ltd [2010] EWHC 1525 (Ch) (Morgan J 30.4.10); Graham v Eltham Conservative & Unionist Club [2013] EWHC 979 (QB) (Hickinbottom J 12.4.13); and Azumi Ltd v Vanderbilt [2017] EWHC 45 (PET) (Recorder Douglas Campbell QC 16.1.17)

Mr Shrimpton recognises and emphasises the distinction between a “McKenzie Friend” on the one hand, and a “lay representative” with “rights of audience” on the other. This case is about the latter. What the Applicant is seeking in these proceedings is the conferral on Mr Shrimpton of rights of audience in the proceedings, so that Mr Shrimpton can act as an advocate. As the Practice Guidance explains at §§2–4:

Litigants have the right to have reasonable assistance from a lay person, sometimes called a McKenzie friend (“MF”). Litigants assisted by MFs remain litigants in person. MFs have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation. MFs may: (i) provide moral support for litigants; (ii) take notes; (iii) help with case papers; (iii) quietly give advice on any aspect of the conduct of the case. MFs may not: (i) act as the litigant's agent in relation to the proceedings; (ii) manage litigants' cases outside court, for example by signing court documents; or (iii) address the court, make oral submissions or examine witnesses .

The distinction between a McKenzie Friend and the conferral of rights of audience is emphasised in N at §39 (citing Clarkson), where Munby J explained the “starting point … that a McKenzie Friend does not, as such, have a right of audience”, and that the Court must exercise its statutory discretion to grant “rights of audience” in accordance with the statute and the principles governing the exercise of the power.

Granting Rights of Audience: a Summary

A good place for me to start is with this invaluable overview, taken from the judgment of Hickinbottom J in Graham at §§27–38:

27. Historically, at common law, the right to act as an advocate was governed entirely by the inherent power of the court to regulate its own procedure. That discretion was absolute, save that, by ancient usage in the superior courts, barristers and others similarly qualified could not be prevented from acting as advocates ( Collier v Hicks (1831) 2 B & Ad 663, 2668, 672 cited by Lord Pearson in O'Toole v Scott [1965] AC 939, 2952C-F).

28. Rights of audience have been the subject of legislation since Part II of the Courts and Legal Services Act 1990, as subsequently amended by Part III of the Access to Justice Act 1999. Those provisions allowed solicitors to have rights of audience in the higher courts, and permitted other professional bodies, once themselves authorised by statutory instrument, to authorise rights of advocacy. Professional bodies which have taken advantage of that provision include the Institute of Legal Executives ( SI 1999 No 1077), the Chartered Institute of Patent Agents ( SI 1999 No 3137), the Institute of Trade Mark Attorneys ( SI 2005 No 240), and the Association of Costs Draftsmen ( SI 2006 No 3333). The provision of legal services is now governed by the Legal Services Act 2007, which set up the Legal Services Board to regulate the now various regulators approved to authorise rights of audience. The regulation of advocates, through the statutory scheme, is therefore highly detailed and sophisticated, and subject to rigorous procedures and discipline .

29. Under the 2007 Act, the right to conduct litigation and the right to act as an advocate are limited to persons authorised under the statutory scheme; but it is recognised by section 19 of, and paragraphs 1 and 2 of Schedule 3 to, the Act that a litigant in person has the right to represent himself in proceedings to which he is a party, which carries with it the right to conduct the litigation (paragraph 2(4) of Schedule 3) and the right to act as his own advocate (paragraph 1(6)). Furthermore, CPR Rule 39.6 and CPR PD 39A paragraph 5 allow a company or other corporation to be represented at trial by an employee duly authorised by the corporation. Although this formally only applies to trials, in practice courts generally allow such employees to appear at any hearing involving a corporate party, to enable that party, in effect, to represent itself as a litigant in person .

30. Additionally, paragraph 1(2) of Schedule 3 (which replicates section 27(2)(c) of the 1990 Act) effectively reserves the inherent power of the superior courts to allow an individual other than a litigant himself to act as advocate before it, by exempting from the detailed procedural requirements “a person who has a right of audience granted by that court in relation to those proceedings”. This statutory provision recognises that at least the superior courts continue to have the power to grant a special right of audience to any advocate to act for a litigant ( ALI Finance Ltd v Havelet Leasing Ltd [1992] 1 WLR 455, and D v S (Rights of Audience) [1997] 1 FLR 724). Whilst an inferior court has no inherent jurisdiction, no doubt for such courts a similar power can properly be implied as part of their general powers in respect of their own procedure.

31. In exercising the discretion to grant a lay person the right of audience, the authorities stress the need for the courts to respect the will of Parliament, which is that, ordinarily, leaving aside litigants in person who have a right to represent themselves, advocates will be restricted to those who are subject to the statutory scheme of regulation ( Clarkson v Gilbert [2000] 2 FLR 839, D v S especially at page 728F per Lord Woolf MR, and Paragon Finance plc v Noueri [2001] EWCA Civ 1402; [2001] 1 WLR 2357 at [53] and following per Brooke LJ). The intention of Parliament is firm and clear. Section 1(1) of the 2007 Act sets out a series of “statutory objectives” which includes ensuring that those conducting advocacy adhere to various “professional principles”, maintained by the rigours of the regulatory scheme for which the Act provides, and without which it is considered lay individuals should not ordinarily be allowed to be advocates for others, a point also emphasised by the Practice Guidance (at paragraph 19). The strength of this interest and will is enforced by (i) specific legislative provisions allowing lay representation in types of claim in which such representation is considered appropriate, e.g. in small claims in the county court (section 11 of the 1990 Act which is unaffected by the 2007 Act, and the Lay Representatives (Rights of Audience) Order 1999 (SI 1999 No 1225), and (ii) the fact that to do any act in purported exercise of a right of audience when none has been conferred is both a contempt of court and a criminal offence (see sections 14–17 of the 2007 Act).

32. Consequently, it has been said by the higher courts that “the discretion to grant rights...