Elms Legal appear to be having a bad time. A Previous blog pointed out the issues with their "Solicitors Agents" and their right of audience, and that Edmund Shoreham-Lawson, their Compliance Manager seems to be repeating the same thing expecting different results.
Today, Mr Wilkie came down from Glasgow to his hunting ground at Stockport, meeting up with Mr Pickup amongst others (hello folks) but being told that Excel's advocate for today was a Ms Jackson, who, after a very abrupt allegation of an ambush, and outrageous conduct towards him, claimed to be CILeX regulated. Nonetheless, Mr Wilkie gave her a copy of the Preliminary Issues, together with McShane v Lincoln, Ellis v Larson and Schedule 3 of the Legal Services Act 2007
As a result, Mr Wilkie grabbed his laptop, and looked up Ms Jackson on the CILeX website, and completely failed to find her. As a result, he pointed out that he would be challenging right of audience.
Mr Jackson was called forward for another Excel case first, and tried, very hard, to stop Mr Wilkie from watching her performance, telling him that he could not enter an open court, and being corrected by DJ Dignan, who said that while Right of Audience was not an issue for that case (no
defendant) it would be examined later. This would have given a reasonable advocate a clue as to what the "preliminary issues" might be, but Ms Jackson didn't bother looking at the document, which did not help her later.
The case was finally called forward at 12.05, and DJ Dignan made it clear that he would be adopting "such procedure as he saw fit" pursuant to rule 27.8 to deal with the matter appropriately. This is entirely correct; sometimes judges have to make allowances for unrepresented parties, and
putting people at ease is helpful. Nonetheless, he did examine both the lack of witness attendance and the Right of Audience.
DJ Dignan was unimpressed that Ms Jackson has felt that examining the document provided to her was beneath her, and made it clear that he was satisfied that right of Audience needed examination. He handed the stage to Mr Wilkie.
Mr Wilkie pointed out that Ms Jackson is not a CILeX regulated principal, and is under the instruction of Elms Legal. He additionally made the point that this is the fourth time he has had to raise the conduct of Elms Legal with the court. He emphasised that the Witness Statement said
that a BW Legal Solicitor had conduct, therefore Ms Jackson did not.
Ms Jackson, rebutting, showed the judge a furtive copy of a letter from Elms Legal stating she has been instructed by, and is under the supervision of, Elms Legal. This also contained Legal Privilege information, and as a result was not shown to the Defendant, though it had little weight at the
and of the day.
Ms Jackson then sought to attack Mr Wilkie, on the basis that his company is based in Glasgow, out of the Jurisdiction. She also suggested that Mr Wilkie regularly "causes a nuisance" in cases like these. The judge's facial expression changed significantly at this, and he pointed out that
a Lay Rep is an Exempt Person within the meaning of Schedule 3 section 1(3) and therefore his physical address has no bearing - "he could be based in Oman and can still represent his client subject to the Lay Representatives order." An important point as well, Mr Wilkie's company was not involved in the case anyway.
Mr Wilkie simply rebutted Ms Jackson's claims, and pointed out that BW Legal's witness probably has no knowledge of Ms Jackson, and she has not been involved in conduct.
The judge in passing mentioned that the witness statement left the claimant in some difficulties in any case, but did not open the case.
The hearing was adjourned for a short period while the judge considered the representations.
Judgment
"This matter arises from a Parking Charge Notice issued at the Peel Centre, Stockport, and the substantive defence is that while the Defendant was present and did park, she also attempted to use the pay and display machines and, the claimant argues, ought to have called the helpline to report the failed machines, and moved on. I have to say that this defence does close certain other angles that could be taken, including that the signs were unclear such that the Defendant did not
know she had to pay.
"However, from the papers, I also note that the Claimant's witness statement, the only evidence before me, will cause it to struggle on the substantive issue; we do however, have to consider a preliminary matter of Right of Audience.
"The Claimant has not attended, and is represented by Ms Jackson, who states that she is a Solicitor's Agent, and the Defendant attends in person, supported by Mr Wilkie, a Lay Representative. I have to say that, in a small claim, there can be no objection to the attendance of a Lay Representative, and as a result we must return now to Ms Jackson's rights of audience.
"Ms Jackson argues that she is an Exempt Person, although she is not employed by the Claimant's Solicitors, BW Legal. To examine her right of audience, I will examine the chain between the Claimant and Ms Jackson.
The Claimant is represented in this matter by BW Legal, and the first paragraph of the Witness statement says "I have conduct of this matter". I find that BW Legal is involved in the Conduct of Litigation.
A solicitor who has conduct of litigation has several options
1) He can come to court, or send another lawyer from his own firm (or another) to represent his client, and both would have right of audience.
2) He can engage the services of counsel, who will have right of audience.
3) He can ask the firm to send an appropriate officer to represent the company.
On this occasion, rather than do any of the above, BW Legal has instructed Elms Legal - the instructions are simple; provide an advocate for this hearing. BW Legal has passed the papers and the instructions to Elms Legal.
Elms has not had conduct of the matter, and has essentially simply acted as a conduit between BW Legal and Ms Jackson. It has not added further instructions, not added any further evidence, indeed, it has acted as a pipe. Elm's instructions to Ms Jackson are those of BW Legal - go to the hearing, and conduct it this way. As a result Ms Jackson claims she is instructed by and involved in the conduct of litigation as staff of Elms Legal. But is this the case?
The exemption she relies upon is Schedule 3, section 1(7) of the Legal Services Act, and this requires the following
The person must be employed to assist in the conduct of litigation, must be involved in the conduct of litigation, must be instructed and supervised by the person with conduct of litigation, and must be
exercising the right in chambers, that is, in a private hearing.
This hearing is not in chambers. Additionally, it is clear that Ms Jackson has not been engaged to assist in the conduct of litigation, which is a distinct act from exercising right of audience. Additionally, while she is instructed, she is not supervised. Supervision is distinct from instruction, and there is no supervision relationship between the Solicitor with Conduct at BW Legal and Ms Jackson at Elms Law. I am not satisfied that Ms Jackson meets the requirements of an Exempt Person, and as a result, she has no right of audience before this court such that she can represent the claimant.
It therefore follows that, the Claimant having not attended, having no representation and having not given notice under rule 27.9, I exercise my discretion under rule 27.9 to strike out the claim.
The Defendant was awarded £55 costs.
Prankster Notes
JW muses "This is the first time I have actually felt sorry for an advocate. Ms Jackson however was abrasive to the point of offensive, and her conduct towards me before the hearing was outrageous, treating me like a child and demanding I sit down and go away when I was trying to
assist my client. Additionally her personal attacks before the judge were inexcusable. I will be making a complaint of her conduct to Elms Legal. However, as I will also be complaining of Elms conduct to CILeX, due to their flagrant disregard of the Legal Services Act, I expect that Ed
Shoreham Lawson will not reply to me."
Excel persist in taking people to court for failures of their own machines. It is obvious to the Prankster there is a moral conflict when a parking company does this. It should not be possible to boost profits by using shoddy machines which keep breaking down.
The Prankster wonders who is the real party "causing a nuisance" in this case?
Happy Parking
The Parking Prankster
Are there not more measures that can be taken to stop Elms Legal from breaking the law?
ReplyDeleteWhy would you want to ? They are handing out free passes to those most of us try to help !
DeleteBecause of the number of people who don't realise they have no right of audience and are getting stuffed by them.
DeleteYes , it's a "numbers game". For the one case where this point has been picked up by somebody in the know, I bet there are dozens of cases where the PPC wins because of lack of knowledge by the motorist.
Delete"being corrected by DJ Dignan, who said that while Right of Audience was not an issue for that case (no
ReplyDeletedefendant)"
It should be. Given the "BW Legal" signature the particulars of claim should be struck out. No POCs and no representations = no case.
Only a Legal Executive who has passed the Civil Advocacy course has a RoA. This does not cover criminal, family matters. There is no RoA for Senior Courts.
ReplyDeleteThat can't be right, since Lord Justice Wilkie wouldn't then have any right of audience.
ReplyDeleteLJW uses the lay rep order 1999. This means he has right of audience as long as his party is there. Parking companies dont send any officers of the company, so there is no right of audience for their rep.
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