Right of Audience
Right of audience is the concept of whether a person has the right to conduct legal proceedings in court on behalf of another. Traditionally barristers have right of audience in every type of court, whereas solicitors typically have right of audience in magistrates’ and county courts. The litigant (the person involved in the legal matter) may decide to represent themselves, and they also have right of audience – this is known as a litigant in person.
In the small claims court, a lay representative (a person who is not the litigant or a qualified solicitor or barrister) may represent the litigant as long as the litigant is present (the Lay Representatives (Right of Audience) Order 1999 enables this). Typically a lay representative is a person who is able to better advocate the litigants case than they would themselves. A McKenzie Friend is another person who attends court and provides advice and moral support to the litigant, but is not allowed to address the court directly.
If a person does not have right of audience, then they cannot conduct proceedings in court. In fact, it is a criminal offence to perform a reserved legal activity, such as this. No court can allow a criminal activity to take place before it, so they cannot allow someone without right of audience to conduct legal proceedings. The offence attracts a sentence of up to 2 years in prison and/or a fine. See the Legal Services Act 2007, section 14 for more information.
Now, we’ll look at the parking angle.
Since 2012 parking companies have taken thousands of motorists to court for unpaid parking charges. Due to the volumes and low amounts claimed, the parking companies need a cost-effective way of conducting proceedings. Typically parking companies or their solicitors (such as Gladstones or BW Legal) send a local representative. Companies such as LPC Law and Elms Legal provide networks of local legal advocates that turn up to represent parking companies in the county court. Often legal advocacy firms use self-employed persons who are not qualified solicitors or barristers.
District Judge Robert Hill, a member of the Civil Procedure Rules Committee, wrote a piece in the Law Gazette on Rights of Audience. He explained a case in York Court in 2010 that questioned the right of audience of a legal advocate. In this case he found that the legal advocate was not qualified as a solicitor or barrister, so had no automatic right of audience. He also found that the advocate was self employed. The problem he found with a self-employed advocate is that “there is no employer or disciplinary body to which he can be reported if he were to behave in an inappropriate way”. Courts do have discretionary power to grant right of audience to otherwise unqualified persons on a case by case basis. However, this is does not allow for the strict right of audience rules to be ignored on a general basis.
As such, if right of audience for the legal advocate is questioned at the beginning of a hearing, the judge may decide that they cannot address the court. If there is nobody else present with right of audience to represent the parking company, then the judge may strike out the claim on this basis without even looking at the details of the case itself! This tactic has worked numerous times in parking cases, as described by Parking Prankster in these blog posts.