IN THE SUPREME COURT OF JUDICATURE FC3 97/6162/D

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CROWN OFFICE LIST

Royal Courts of Justice

Strand

London WC2

Thursday, 19th June 1997

B e f o r e :

LORD JUSTICE BELDAM

LORD JUSTICE ROCH

SIR JOHN BALCOMBE

THE QUEEN

v

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Ex parte TUMWA GEORGE

(Computer Aided Transcript of the Stenograph Notes of

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DR. A. ADOKO appeared on behalf of the Applicant.

MR. S. KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

J U D G M E N T (As approved by the Court)

Crown Copyright

LORD JUSTICE BELDAM: Before the court is an application by Dr. Adoko to be granted rights of audience and to be present in Mr. George's renewed application for judicial review. He makes his application under the provisions of section 27(2)(c) of the Courts and Legal Services Act 1990. Dr. Adoko is a barrister. He tells us that he has practised as a barrister for a period of 25 to 30 years but at present his status is that of a nonpractising barrister. He therefore cannot exercise a right of audience before this court as a person who has been granted that right by an appropriate authorised body. Thus he seeks the grant of a special right under section 27(2)(c). He also tells us that he is a member of a firm of solicitors, Attanayake & Co, who have had the conduct of the applicant's case and that in the court below the applicant, whose application was refused by Langley J, was represented by counsel. We are told that the applicant has sought but been refused legal aid for his renewed application.

Our attention has been drawn to a recent decision of this court in which Lord Woolf MR considered an application by Dr. Pelling to represent one of the parties in a family dispute. It is unnecessary to go into the circumstances of that case but, in giving judgment, Lord Woolf referred back to a decision of Neill L.J. in the case of Tewan v. Tewan. He pointed out, having considered the background of the applicant in that case, that he was conducting, on behalf of those who wished him to do so, assistance in the litigation process which was totally out of accord with the spirit of the Act. Secondly, Woolf LJ pointed out that the decision was not a matter for the consent of the parties. It was the courts to whom Parliament had entrusted that responsibility. He pointed out that the granting of rights of audience under the Act is subject to stringent requirements. He said that it could not be right that someone such as Dr. Pelling could bypass those stringent requirements in spite of the fact that he might be of the greatest assistance to those whom he was offering to help. Another factor which Lord Woolf pointed out was that the law had to be administered fairly, and that if someone in the position of Dr. Pelling in that case I would add also, of Dr. Adoko in the present case were regularly able to apply to the courts under this provision for the right of audience to conduct cases in particular proceedings, there would soon be many others who would do exactly the same, and that, said Lord Woolf, would be entirely inappropriate,

having regard to the stringent requirements placed on those who apply for, obtain and practise with the approval of those entrusted to grant normal rights of audience.

The Master of the Rolls, giving guidance to courts in deciding an application of this kind, said that the court should pause long before granting such a right of audience. The colletive effect of considering individual cases would tend to bypass the stringent provisions in the Act intended for the protection of the public to maintain standards of advocacy before the courts. Furthermore, it was not the intention of Parliament that these rights should be granted ad hoc frequently by courts to persons who could obtain the proper authorisation for a general right of audience.

Dr. Adoko says, having read the case of DVS, that he is in a different position, first because he has practised as a barrister in the past for a number of years, and, secondly, because he has appeared a number of times before courts in this country. He has professional experience in the presentation of cases. He said that he had appeared again and again, and why, he asked rhetorically, should Parliament have included power for the courts to grant a right of audience under section 27(2)(c) unless it intended such rights to be granted to persons such as himself? If not to him, to whom would the court grant such rights? As Neill L.J. pointed out in the case of Tewan, the statutory objectives and the general principles to be observed under Part II of the Courts and Legal Services Act 1990 require that the court should pay particular attention to the terms of section 27(1), which provide that:

"The question whether a person has a right of audience before a court or in relation to any proceedings shall be determined solely in accordance with the provisions of this Part."

Accordingly, in exercising the discretion which, as the Master of the Rolls says, has been given to courts, and pausing long before doing so, it seems to me that the matters I have referred to point strongly against the grant of a right of audience in this case to Dr. Adoko. That is not to say that the court might not have been assisted by him in the presentation of this renewed application but, in my view, the Master of the Rolls has clearly pointed to the considerations which the court should have in mind, and having those matters very much in mind, and bearing in mind that Dr. Adoko says that this is not an isolated instance of him seeking a right of audience, it is not a case in which I would exercise the discretion to grant him a right of audience under section 27(2)(c).

LORD JUSTICE ROCH: I agree.

SIR JOHN BALCOMBE: I agree.

Order: Application refused.