MIL Collection v Mrs M, Oldham County Court, 3/2/2017, C5QZ4M9H
Mr M, Mrs M's ex-husband, has some experience in law, and as a result was gong to lay rep for this case, but contacted the BMPA via Bargepole and asked for further details of the Mrs C case (as reported recently) especially in regard to right of audience.
John Wilkie of Private Parking Appeals was the Lay rep for that case, so he offered some pointers and offered to come along for the fight if he was free.
As it happens, he was, and so popped down to Oldham from Glasgow, and was offered the chance to lay-rep the case.
When everyone was identified by the usher, it turned out that the advocate sent along by Elms Legal was the delightful Ms Kauser (again) who had been denied right of audience at Burnley only two weeks ago.
As a result Mr Wilkie rolled out a few relevant persuasive cases, including Ellis v Larson and McShane v Lincoln, both of which examine closely the question of a "solicitors agent" as done the recent publication by the Law Gazette at https://www.lawgazette.co.uk/law/bar-council-solicitors-agents-could-face-prison-term/5059560.article
Having been pointed to these matters, the judge properly examined both Mr Wilkie's right of audience, and Ms Kauser's. An interesting bombshell dropped by Ms Kauser is that MIL apparently intend to appeal the Mrs C Case.
Mr Wilkie, as always, relied on the Lay Representatives (Right of Audience) Order 1999, which makes him an exempt person within the meaning of Schedule 3 of the Legal Services Act 2007.
Regrettably for Ms Kauser, she was unable to satisfy the judge that she was involved in the "Conduct of Litigation" nor that she was "Supervised" such that she was also an exempt person. As she had no right of audience, and specifically because MIL Collections are professional debt collectors,
she was refused audience, and asked to stand down from the case. She indicated an intention to appeal the judge's finding in this case, which was additionally refused.
As a result of MIL not attending, not being represented and not producing their witnesses, Mr Wilkie invited Judge Greensmith to strike out the claim under rule 27.9, which the judge did, and also granted £93.70 costs for the Defendant due to the unreasonable conduct of MIL.
The judge generously thanked Mr Wilkie for his assistance, and Mr M for his well-prepared and well-pleaded documentation. Mr Wilkie is now at home in Scotland, though he has left his Ego at the court, as it could not fit back out through the door.
Prankster notes
The Prankster is aware of a court statement by Alan Davis in which he states "Any advocate that attends on [MIL's] behalf is fully compliant with the requirements of the Legal Services Act 2007." This seems to be as accurate as his previous claim in Parking news to send an advocate to
every single court hearing. The Prankster suggests that Alan Davis and The Truth are not common bed-fellows.
MIL Collections, you've been Gladstoned, yet again.
Rights of audience are further examined here
http://www.4kbw.net/news/28102016123256-rights---wrongs-of-audience/
http://www.pibriefupdate.com/content/law-journal-summaries/news-category-2/3949-mcshane-is-such-a-shame-paul-stanton
https://nearlylegal.co.uk/2017/01/solicitors-agents-yet-no-rights-audience/
The Bar Council's advice is here
http://www.barcouncil.org.uk/media/404046/solicitor_s_agents.pdf
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MIL represent the classic definition of incompetence. Continually repeating the same mistake in the hope of achieving a different result.
ReplyDeleteIndeed. All based on cost of course in that in some courts they'll succeed - no one is there to assist the lamb-to-the-slaughter defendant - whereas when Mr Wilkie appears they are doomed to fail. Given that in the last 2 years or thereabouts barely 1% of MIL's cases have been positively affected by forum assistance they are hardly onto a loser.
DeleteThe term "solicitor's agent" could be construed as misleading because to me, it implies that they are qualified and have rights of audience. In my view, a solicitor's agent is someone who is instructed on behalf of a solicitor (but the key thing is that the agent is qualified) who acts as an agent on behalf of the instructing solicitor. Quite commonly, where the instructing solicitor is not local to the area and would therefore instruct a local solicitor to do the work.
ReplyDeleteAlso, in D V S (RIGHTS OF AUDIENCE) 1997, Lord Woolf made some important comments on the 1990 Act which I still think ring true today @ paras. 18-20:
"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.
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.
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."
Also at the end of para. 17 of the judgment, he stated "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."
DeleteNothing has really changed between the 1990 and 2007 Act in respect of that position and I doubt saving costs would come under the category of exceptional circumstances.
A right of audience means the right to appear before and address a court, including the right to call and examine witnesses.
ReplyDeleteRights of audience in small claims TRIALS are enjoyed by
Litigants in person
Lay reps under CPR 27.32(1)
Practising barristers
Practising solicitors
Legal Execs who have a civil advocates cert.
Chartered Institute of Patent Agents
Institute of Trademark Attorneys
Association of Law Costs Draftsmen
Those NOT enjoying the right include:
Muppets sent by Gladstones who work for Elm Legal and other two-bob outfits.
All Sadstones need do is send notice that they will not be attending under CPR 27.9
How does one find out before the day of the court case if the claimant's legal representative has the right of audience? I will be facing whomsoever Gladstones puts up in a few weeks' time, though I wouldn't be at all surprised if "Sadstones" just fails to turn up without informing me of their pulling out. I hear they do this frequently. After all the hours, weeks, months of research I have done in pursuit of my pursuers should I, in such an eventuality, take Gladstones to the small claims court? Or their PPC Link Parking? Or the Management Board which has failed to support the resident's rights? If I can make a claim from them all, should it be done in one fell swoop (jointly) or should it be done separately?
ReplyDeleteYou cannot, because it depends who turns up on the day. For instance, anyone has right of audience if the claimant actually turns up as well.
Delete