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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> D v S [1996] EWCA Civ 1341 (18 December 1996) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1996/1341.html Cite as: [1997] Fam Law 403, [1997] 2 FCR 217, [1996] EWCA Civ 1341, [1997] 1 FLR 724

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE MILTON KEYNES COUNTY COURT
(HIS HONOUR JUDGE TYRER)

		Royal Courts of Justice Strand London WC2
		18 December 1996

THE MASTER OF THE ROLLS:

1. I would like to deal with the application raised before us by Dr Pelling that he should be given rights of audience on this application for leave.
2. Dr Pelling has considerable experience of the issues that arise in cases such as this. He has put before the court a reasoned request in letter form to be granted rights of audience. He has also conducted correspondence with the Registrar to the court and has written a letter dated 23 October 1996 to me personally on the same issue. It seems to me that this case does raise a question of principle as to the appropriateness of a person in Dr Pelling's position being granted rights of audience.
3. Dr Pelling's position has previously been considered by this court in the case of Chauhan v Chauhan which was heard on 26 October 1994. The judgment, which was given by Neill LJ, was unfortunately not reported and therefore the contents of it may not have been drawn to the attention of courts up and down the country to the extent to which it should have been. It is a case of some significance because of the arguments advanced by Dr Pelling, which the court carefully considered in that case, that he should be granted regularly rights of audience in this area.
4. I am aware that yesterday another issue was considered by a different division of this court in regard to Dr Pelling's involvement with a Housing Association. I understand Dr Pelling's appeal in that case was successful, but the issues before that court were different from the issues here. I am not considering the position in relation to Housing Associations.
5. In the case of Chauhan v Chauhan Neill LJ considered the relevant statutory provisions under the Courts and Legal Services Act l990. He referred to Section 28 of that Act which deals with whether a person has the right to conduct litigation. The Section provides explicitly that that question has to be determined solely in accordance with the provisions of Part II of the Act. Part II of the Act begins with Section 17 which contains in subsection (2) the following provisions:

"A person shall have a right to conduct litigation in relation to any proceedings only in the following cases-

....

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

6. Dr Pelling draws attention to the general nature of that provision which he submits enables a court, in the exercise of its discretion, to allow someone in his position to conduct litigation.
7. Neill LJ, in the course of his examination of the statutory provisions, goes on to refer to Section 18 of the Act. In relation to Section 18 he refers to subsection (2) which requires:

"A person exercising any such functions shall act in accordance with the general principle and, subject to that, shall-

(a) so far as it is possible to do so in the circumstances of the case, act to further the statutory objective; and

(b) not act in any way which would be incompatible with the statutory objective."

8. He then turns to the provisions of Section 17 which sets out what is the statutory objective. Neill LJ then states that in support of his application Dr Pelling had developed a number of arguments: first, that the particular litigant in that case needed skilled assistance; secondly, that the particular litigant did not wish to apply for legal aid; and, thirdly (and this may not be a matter in issue) that Dr Pelling could provide satisfactory legal services at a much cheaper rate than a solicitor. Dr Pelling had apparently drawn attention to the charges which a solicitor might make for what had been done and indicated that he could provide those services at about a tenth of those which would be charged if the person concerned had the professional help of a solicitor.

Neill LJ then goes on to say:

"That unless he is authorised by the court, Dr Pelling, cannot charge for any litigation services because, if he did attempt to do so, he would be in contravention of the Solicitors Act."

9. In that case, Dr Pelling drew the attention of the court to the documentation which he provides to people who are willing to take advantage of his services and to the advertising material that he provided. He said that if he was able to carry on in this way it would be for the benefit of litigation generally because it would ensure that there would be greater expedition in the conduct of litigation and that it would be more efficient. Neill LJ recalls the final submission of Dr Pelling that:

"....as the general principle is set out in Section 17, that must contemplate that there are exceptions; and, as far as advocacy is concerned, the courts do, from time to time allow advocates to appear to assist litigants in person."

10. It is then recorded that Dr Pelling frankly accepted that he could not comply with the requirement of Section 17(3) and:

"Furthermore he makes it clear that, if he is allowed to act in this case, he contemplates making similar applications in other cases, and, indeed, making a career of providing legal services at a fraction of the cost of a solicitor."

11. The judgment goes on to record that Dr Pelling also makes it clear that he is not insured, but Neill LJ said that:

"It seems to me that the duty of the court is to have regard to the guidelines which Parliament itself has laid down. I am firmly of the view at the moment, although I see the force of all that Dr Pelling has put before us, that it would not be right, in the exercise of the statutory duty imposed by section 18, to accede to this application. It may be that some time in the future there could be a change in the law and some modification in the present system, but as the law stands at the moment, with those clear guidelines given by section 17, for my part I feel bound to reject this application."

The other members of the court agreed.

12. Dr Pelling is apparently the Chairman of East London Families Need Fathers. He wrote to the court on paper bearing the heading of East London Families Need Fathers and Keeping Children & Parents in Contact, which is a registered charity. In the course of the various matters he raised he says, referring to the letter from the Registrar:

"The Registrar is worried that the exceptions might swallow up the rule. One wonders why that is deemed to be a bad thing. There are clearly arguments for and against and I think it would be going too far afield to address them here. I will content myself by submitting that on this application it is an exception which is not in any danger of setting any precedent which could swallow up the rule. Points are:

(i) I had a right of audience in the court below and the Appellant was not present at the hearing in the court below. So far as it is relevant I also had a right of audience before the Divisional Court whose Judgment is in the Bundle."

and he refers to that Divisional Court judgment.

"(ii) I enter this case in virtue of my position in a Society which specialises in father's rights and provides legal advice and assistance so far as possible to its members, of which the Appellant is one. I have gained requisite experience and legal knowledge through my work in that Society. I appear on that Society's national `Panel of members with knowledge and experience to share`...."

(iii) Parliament seems to be looking favourably upon the idea of persons with specialist knowledge, not members of the legal profession, acting on behalf of others in certain Family law matters."

and he refers to Section 60 of the Family Law Act 1996 which has no direct application to the present matter. He continues:

"(iv) The prospective appeal probably involves more technicality and knotty questions of law than most Family law matters, particularly interlocutory injunctions and the land law relating to rights of equitable tenants in common."

13. Speaking for myself, I do not dissent from that comment about the difficulty of this case. He goes on to point out that counsel for the respondent has not objected in the past to his having a right of audience and:

"I have no reason to think he would do so now."

14. I have not even asked counsel who appears on the other side whether she objects. I will assume for the moment that as far as they are concerned, they have no objection.
15. In his letter to me, Dr Pelling says:

"I frequently assist fellow members of Families Need Fathers who prefer to act in person in their court cases, whether because of lack of funds or dissatisfaction with Legal Aid lawyers or desire to control the case and present it in their own way with FNF advice. At court I assist as a Friend in Court (McKenzie friend) and quite often in county courts have been granted a right of audience. Having gained a certain experience and knowledge in the area of Family law, I can usually present and argue the case better than the litigant member who may indeed be involved in litigation for the first time in his life. Better not only from the litigant's point of view but also from the Court's since things go more smoothly and Court time is less likely to be wasted. I have by now assisted in quite a number of Court of Appeal cases, as well as conducting my own appeals and applications for leave. But only very rarely in assisting others has the Court of Appeal been willing to grant a right of audience under Section 27(2)(c) Courts & Legal Services Act 1990 notwithstanding requests by the litigant that I speak on his behalf to present his case."

16. Dr Pelling then refers to another case of Thomas v Thomas in which he was involved. He goes on to indicate that there was some statement in that case as to some form of direction which had been given of which he makes comment. He then continues:

"I then commented that the discretion under Section 17(2) Courts & Legal Services Act could not be fettered and that it was surely for the Court of Appeal to consider each individual case as and when it arose. (The implication being that the Master of the Rolls can interfere with the exercise of this statutory discretion by other Judges of the Court of Appeal). I suggested as a solution in the instant case that Mr Thomas should begin and if he got into difficulties then the Court could consider allowing me to take over, and that was acceded to. In the event Mr Thomas argued his case adequately with some assistance by prompting.

I am writing to you to ask for the specific reference for this Direction of the Master of the Rolls, and I should be most grateful if a copy could be sent to me. Alternatively it is possible Lord Justice Swinton-Thomas was mistaken about it and if so I should like that to be confirmed."

17. There was a misunderstanding in that case. There has been no direction given which deals with this issue. However, this is a situation which now calls for this court to give guidance. I can see arguments being advanced that the law as it is now is not appropriate and it should be relaxed in some way. However, the law has not been relaxed and the Act to which I have referred still governs the position. That Act does give a court a discretion. In my view, it is quite clear from the terms in which the Act as a whole is written that it is giving a discretion which is to be exercised only in exceptional circumstances.
18. When you consider Dr Pelling's background, he is conducting, on behalf of those who wish him to do so, assistance in the litigation process which is totally out of accord with the spirit of the Act. I consider that, on any application which Dr Pelling makes in future, careful consideration should be given by the court as to whether it should exercise its discretion by allowing him to have advocacy rights. This is not a matter for the consent of the parties. I refer to one case where in the Family Registry he was given advocacy rights by consent. This shall not happen. It is the responsibility of the courts who have been given that responsibility by Parliament. Those who have rights of audience are subject to very stringent requirements. It cannot be right that Dr Pelling can by pass those stringent requirements, albeit that no doubt those who he has helped are very grateful for his assistance.
19. The law must be administered fairly. If the position was otherwise than I have indicated, others can do exactly the same as Dr Pelling and that would be monstrously inappropriate having regard to the requirements that are placed upon those who have normal rights of audience.
20. I would therefore give this guidance to courts for the future when exercising their discretion. When they have applications by Dr Pelling, or others in a similar position, they should pause long before granting rights of audience. This is because otherwise by considering each case individually, the collective effect of what they are doing is allowing Dr Pelling to by pass the provisions of the Act. That is clearly not what Parliament intended. In saying this I am very conscious that Dr Pelling's assistance could be very useful to some litigants. I also appreciate that judges up and down the country who have the difficult task of coping with litigants in person would often be grateful for his assistance, as no doubt was the judge in the court below in this case. However, we cannot allow the fact that our personal inclination would be that we should receive help from Dr Pelling to enable him to by pass the law in the way I have indicated.
21. Therefore, in my judgment, those are the reasons why I would not on this application grant Dr Pelling right of audience in relation to this application for leave.

LORD JUSTICE WAITE:

I agree with everything that has been said by the Master of the Rolls on Dr Pelling's application for rights of audience to which I do not wish to add anything.

LORD JUSTICE WALLER:

I also agree.