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Clarkson v Gilbert

6 July 2000
The issues

Rights of Litigant in Person to act through an unqualified person pursuant to Section 27(2)(c) Courts and Legal Services Act 1990

The facts

The Claimant was a litigant in person who brought Civil proceedings. Her husband had a law degree. He was doing Bar finals but had not been called. Application was made to Morland J. arguing that he should be granted rights of audience, firstly on the grounds of the Claimant’s ill health and secondly her lack of means. Attempts had been made to get the assistance of a Lawyer on a conditional fee which had not been forthcoming. He had also attempted to make use of the Bar Pro Bono Unit.

The decision

The Courts recognised that now legal aid was not available as readily as it had been there were going to be situations where litigants were forced to bring proceedings in person when they would need assistance. Litigants in person had to satisfy the Court as to why it was appropriate for them to be represented by an unqualified person. The sort of circumstances that would persuade the Court would be ill health and lack of means. Although there had been previous authority to the effect that the discretion which appeared at Section 27 (2)(c) should be exercised only in exceptional circumstances, that that Authority had been intended for the facts of that case and not for a situation where a husband wished to appear for his wife.

The Application had been made by the husband. This was not the appropriate way of going about such an Application. Normally it should be the Claimant who should do it. Moreover once rights of audience had been granted to the husband, the Claimant disappeared from the litigation. “That was not what should happen”. She should be present on occasions where matters directly affecting her interests were involved. However it was very important that whilst the Court should have mind the overriding objective of doing justice, the extension to rights of audience of those who are not properly qualified should not be done in “a disproportionate way”

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