Support for partiessee also Representatives:companionshipsee also Representativessee also Representatives:assistanceTimes 21 MarchRe [2001] 1 WLR 100
9.1A party may benefit from support in presenting a case to a tribunal in three ways: companionship, assistance and representation. Conceptually these are distinct functions, but in practice they are not so easily kept separate.
9.2A companion is someone who comes with the party for companionship and moral support, but who plays no part in the hearing. Although companions make no direct contribution to proceedings, they can fulfil a valuable function by putting the party at ease and able to function better in an unfamiliar environment.
9.3An assistant is someone who helps the party to present a case. For example: the assistant may help the party find relevant documents or jog the party’s memory on points to make. In the courts, an assistant is known as a
McKenzie friend.
1Despite the wishes of the Court of Appeal in R v Leicester City Justices ex p Barrow [1992] 2 QB 260. This term is not employed under TCEA.
9.4A representative puts the case for the party to the tribunal or advises or assists the party on doing so. There are usually no rules of limited audience for a tribunal. If there are not, a representative need not be legally qualified. There is, indeed, no requirement that a representative have any form of accreditation from anyone. The representative may attend and speak at the hearing, prepare a written submission for the tribunal, or advise the party on how to present the case.
9.5These categories are not necessarily mutually exclusive. The roles may not be distinct or easy to distinguish: a companion may jog a party’s memory and an assistant may also provide companionship and support. In R(G) 1/93, the same person acted as representative, interpreter and witness.
The value of representatives
9.6Tribunals should be accessible.
2TCEA ss2(3)(a) and 22(4)(b). However, the nature of the issues that arise may be such that it is unrealistic to expect a lay party to manage without representation, even with the assistance of the tribunal. As Mummery LJ said of employment tribunals in
Connex South Eastern Ltd v Bangs:
3[2005] ICR 763 at 14. ‘Tribunal cases have become more complex and difficult, both factually and legally.’
Choice of representative
9.7This is a generally a matter for the party,
4Representatives in immigration and asylum cases are subject to control. not the tribunal or the other parties. As Carnwath LJ said in
Khan v Commissioners for Revenue and Customs:
5[2006] EWCA Civ 89 at [53]; (2006) Times 21 March.Unless the tribunal had some other reason to doubt [his representative’s] competence, they would have had no business to inquire into the background of his choice of representative, or his knowledge of the availability of legal aid.
Under TCEA
9.8TCEA Sch 5 para 9 provides:
Rules may make provision conferring additional rights of audience before the First-tier Tribunal or the Upper Tribunal.
9.9The rules of procedure allow a party to appoint a legal
6As defined in: UTR r11(9); HESC Rules r1(3); Lands Rules r11(7); SEC Rules r1(3); Tax Rules r11(7); WPAFC Rules r1(3). or other representative. The representative’s powers and rights depend on whether the appointment is notified to the tribunal or, in some cases, to the decision-maker.
7See: SEC Rules r11(3); WPAFC Rules r11(3).9.10If the appointment has been notified to the tribunal, the representative may do anything on behalf of the party except sign a witness statement and has a right to all the documents that would otherwise be sent to the party, including (presumably) notice of an oral hearing. UTR r11(3) and (4) is illustrative:
8See also: GRC Rules r11(3) and (4); HESC Rules r11(3) and (4); IAC Rules r10(4) and (5); Lands Rules r11(3) and (4); PC Rules r14(3) and (4); SEC Rules r11(3) and (4); Tax Rules r11(3) and (4); WPAFC Rules r11(3) and (4).(3)Anything permitted or required to be done by a party under these Rules, a practice direction or a direction may be done by the representative of that party, except signing a witness statement.
(4)A person who receives due notice of the appointment of a representative–
(a)must provide to the representative any document which is required to be provided to the represented party, and need not provide that document to the represented party; and
(b)may assume that the representative is and remains authorised as such until they receive written notification that this is not so from the representative or the represented party.
9.11If the appointment has not been notified to the tribunal, the representative has the power to attend a hearing and, with the tribunal’s permission, may act as a representative or assist in presenting the party’s case, but no other powers or rights.
9See: UTR r11(5) and (6); GRC Rules r11(5) and (6); HESC Rules r11(5) and (6); Lands Rules r11(5); PC Rules 14(5) and (6); SEC Rules r11(5) and (6); Tax Rules r11(5) and (6); WPAFC Rules r11(5) and (6). There is no equivalent power in IAC Rules.9.12The rules of procedure allow a party to be accompanied and, with the tribunal’s permission, assisted in presenting a case at a hearing. UTR r11(5) is illustrative:
10See also: GRC Rules r11(5); HESC Rules r11(5); Lands Rules r11(5); PC Rules 14(5); SEC Rules r11(5); Tax Rules r11(5); WPAFC Rules r11(5). There is no equivalent power in IAC Rules.(5)At a hearing a party may be accompanied by another person whose name and address has not been notified under paragraph (2) but who, subject to paragraph (8) and with the permission of the Upper Tribunal, may act as a representative or otherwise assist in presenting the party’s case at the hearing.
It is not clear whether this provision applies only to representatives and assistants rather than to some who is merely and solely a companion.
9.13Special rules apply in mental health cases. UTR r11(7) and (8) is illustrative:
11See also: HESC Rules r11(7) and (8). The power was discussed by the Upper Tribunal in AA v Cheshire and Wirral Partnership NHS Foundation Trust [2009] UKUT 195 (AAC) at [10]–[25].(7)In a mental health case if the patient has not appointed a representative the Upper Tribunal may appoint a legal representative for the patient where–
(a)the patient has stated that they do not wish to conduct their own case or that they wish to be represented; or
(b)the patient lacks the capacity to appoint a representative but the Upper Tribunal believes that it is in the patient’s best interests for the patient to be represented.
(8)In a mental health case a party may not appoint as a representative, or be represented or assisted at a hearing by–
(a)a person liable to be detained or subject to guardianship or after-care under supervision, or who is a community patient, under the Mental Health Act 1983; or
(b)a person receiving treatment for mental disorder at the same hospital home as the patient.
Control of representatives under TCEA
9.14The courts have recognised that it may be necessary to control representatives, assistants and, if they are a separate class, companions.
12R v Leicester City Justices ex p Barrow [1992] 2 QB 260.9.15Under TCEA, the only express control of a representative is the power for at tribunal to make a wasted costs order (s29(4)). This creates a personal liability, but is limited to legal representatives as defined by section 29(6).
9.16Otherwise, representatives are subject to the same duty as the parties to help the tribunal to further the overriding objective and to co-operate with the tribunal generally. If representatives fail to comply with the rules of procedure, practice directions or directions, the consequences may be visited on the party. These matters are discussed in chapter 3.
9.17Representatives are also subject to the general powers of control given to the tribunal. It has power to regulate its own procedure, to control those who may attend a private hearing, to exclude persons from attending all or part of a hearing, and to exclude witnesses until they give evidence. If the tribunal is considering whether to exercise these powers, it will have to reconcile its need to regulate its procedure with the right to be represented, assisted and accompanied. One way is to use the discretionary element of the powers to impose conditions on the representative’s conduct, with exclusion used as the last resort. These powers might have been used effectively to overcome the difficulties that the tribunals experienced in some of the cases below.
9.18The tribunal has power to confine the representative to relevant matters and to control the way in which these matters are investigated and presented. As Mummery LJ explained in
Bache v Essex County Council:
13[2000] 2 All ER 847.Just as the tribunal is under a duty to behave fairly, so are the parties and their representatives. The tribunal is accordingly entitled to require the parties and their representatives to act in a fair and reasonable way in the presentation of their evidence, in challenging the other side’s evidence and in making submissions. The ruling of the tribunal on what is and is not relevant and on what is the fair and appropriate procedure ought to be respected even by a party and his representative who do not agree with a ruling.
14[2000] 2 All ER 847 at 855.9.19But if a representative does not behave as Mummery LJ envisaged, the tribunal generally has no power to prevent a representative from presenting a case. This issue was considered in
Bache v Essex County Council.
15[2000] 2 All ER 847. The case concerned a hearing before an employment tribunal at which the employee had been represented by an unqualified and inexperienced representative. The tribunal decided that the representative was prolonging the proceedings and clouding the issues. It decided not to allow him to continue to act as representative, although it allowed him to assist the employee. The Court of Appeal decided that the tribunal had no power to do this. The limit of the tribunal’s power in normal circumstances was set out by Peter Gibson LJ:
It is not in dispute that a tribunal has the power … to control the way a party or his representative conducts his case before the tribunal. Thus, the tribunal can exclude irrelevant evidence and argument and stop lines of questioning and submissions which do not assist.
16[2000] 2 All ER 847 at 852.For circumstances outside the normal:
I fully recognise that so to hold could leave tribunals with potentially very difficult situations … when a representative may try to persist in doing what he has been told not to do. If the representative so acts with the knowledge and approval of the party, that may in an extreme case constitute an abuse of process such as may disentitle the party from relief or from being entitled to defend the proceedings. The conduct may in an extreme case constitute contempt, though the tribunal itself will not be able to punish for contempt but may have to cause contempt proceedings to be instigated … It is perhaps unfortunate that the leave of the tribunal is no longer a requirement for representation by a representative … But that is a matter for Parliament.
17[2000] 2 All ER 847 at 853.9.20The tribunal’s scope for action if it is insulted by a representative is also limited. This issue was considered by the Court of Appeal in
Bennett v Southwark London Borough Council.
18[2002] ICR 881. The case concerned a hearing before an employment tribunal at which the employee’s representative accused the tribunal of being racially prejudiced against him in refusing his application to adjourn. The tribunal recused itself, directing a rehearing before a differently constituted tribunal. That tribunal then struck out the proceedings. Ward LJ was of the view that the first tribunal was entitled to recuse itself on the ground that it could no longer act impartially. Sedley and Longmore LJJ disagreed. Sedley LJ explained how a tribunal should react if faced with insults:
19[2002] ICR 881 at [17]–[20].Undoubtedly there are situations in which the emergence, for example, of an unanticipated financial interest means that the tribunal has already reached the point of no return whatever the parties say. But where the reason is an advocate’s aberrant and offensive behaviour, as it was here, there are numerous reasons not to abort the hearing until a serious endeavour has been made to defuse the situation, and more than one way to do so.
One way (and perhaps the best way in the case of a single outburst) is to ignore it. Another, if having retired the tribunal feel as this tribunal did, is to point out to the advocate the potential consequences of his behaviour and invite him, if he cannot justify his remarks, to withdraw them. If he withdraws them, there is no reason in the ordinary way why the case cannot go on.
Even if he does not withdraw, and assuming of course that no proper justification is offered, the tribunal may still need to consider whether, given the potential injustice to the other side and the public expense which recusing themselves will bring, they cannot, perhaps after a break, continue with the hearing with unclouded minds. Courts and tribunals do need to have broad backs, especially in a time when some litigants and their representatives are well aware that to provoke actual or ostensible bias against themselves can achieve what an application for adjournment cannot. Courts and tribunals must be careful to resist such manipulation, not only where it is plainly intentional but equally where the effect of what is said to them, however blind the speaker is to its consequences, will be indistinguishable from the effect of manipulation …
If the advocate persists in defying the tribunal without arguable justification, the tribunal can invite the Attorney General to consider proceeding against him for contempt of court …
The Court of Appeal also decided that the later tribunal had not been entitled to strike out the proceedings, as the overall conduct of the proceedings was neither scandalous nor an abuse of process.
Court control over legal representatives
9.21The courts have asserted power to prevent barristers and solicitors from acting in court proceedings. It is not clear whether the relevant distinction is between courts and tribunals or between cases of competence and others.
9.22In
In re L (Minors) (Care Proceedings: Solicitors),
20[2001] 1 WLR 100. the High Court was concerned with care proceedings brought by a local authority. The solicitor for the local authority was cohabiting with the solicitor for one of the parents. Wilson J ordered that the local authority’s solicitor be removed from the record. It was not in dispute that the court had power to make this type of order:
21[2001] 1 WLR 100 at [18].An elemental component of the jurisdiction of the Supreme Court is power to control its own process and indeed its own officers. It is not disputed that the court has power to determine whether a particular firm of solicitors should play a role in the forensic exercise of which it is the director. The court has an analogous power to refuse to hear a particular advocate: see now section 27(4) of the Courts and Legal Services Act 1990.
The issue for the court was the basis on which the power should be exercised. Wilson J emphasised the nature of the proceedings and the importance of the local authority being seen to act impartially in them.
22[2001] 1 WLR 100 at [34]–[38].9.23In
Geveran Trading Co Ltd v Skjevesland,
23[2003] 1 WLR 912. the Court of Appeal was concerned with a bankruptcy petition. The barrister for one of the creditors had had a personal relationship some years before with the debtor’s wife. The Court held that he was entitled to represent the creditor. Arden LJ set out the Court’s analysis of the basis on which there was power to prevent an advocate appearing:
24[2003] 1 WLR 912 at [41]–[42].We, therefore, reject the submission … that the only circumstances in which the court can act to prevent an advocate from acting is where he has confidential information. The case law demonstrates that in exceptional circumstances an advocate can be prevented from acting even where he does not have such information.
Where a party objects to an advocate representing his opponent, that party has no right to prevent the advocate from acting based on the Code of Conduct as the content and enforcement of that Code are not a matter for the court. However, the court is concerned with the duty of the advocate to the court and the integrity of the proceedings before it. The court has an inherent power to prevent abuse of its procedure and accordingly has the power to restrain an advocate from representing a party if it is satisfied that there is a real risk of his continued participation leading to a situation where the order made at trial would have to be set aside on appeal. The judge has to consider the facts of the particular case with care … However, it is not necessary for a party objecting to an advocate to show that unfairness will actually result. We accept Mr Jones’ submission that it may be difficult for the party objecting so to do. In many cases it will be sufficient that there is a reasonable lay apprehension that this is the case because as Lord Hewart CJ memorably said in R v Sussex Justices ex parte McCarthy [1923] 1 KB 256, it is important that justice should not only be done, but seen to be done. Accordingly, if the judge considers that the basis of objection is such as to lead to any order of the trial being set aside on an appeal … he should accede to an order restraining an advocate from acting. But we stress that the judge must consider all the circumstances carefully. A connection, for instance, between counsel for one party and a witness on the other side may be an important factor where the evidence is of fact but, depending on the nature of the connection, it may be less important where the evidence is of an expert nature and the cross-examination is likely to be on questions of technical expertise. The judge should also take into account the type of case and the length of the hearing, and any special factor affecting the role of the advocate, for instance, if he is prosecuting counsel, counsel for a local authority in care proceedings or as a friend of the court.
9.24The Court also considered the practicalities of raising an objection to a representative. Arden LJ set out the proper approach:
25[2003] 1 WLR 912 at [47].If a party objects to the advocate for the other party, he should make that clear to the other party without delay. If it is necessary for the court to rule on the objection, the party taking the objection should make an application at the latest at the start of the hearing or (if later) as soon as the circumstances giving rise to the objection are known to him. If there is an interim hearing in the case, and the circumstances are known, the court should be informed of the objection at the interim hearing and invited to give directions as to when the objection should be heard. If there is no interim hearing it may in some cases be sensible for the party wishing to make the objection to make a separate application as soon as the circumstances become known to him in order to avoid the risk of an adjournment of the substantive hearing if the objection is sustained. In the same way, it may be sensible for the advocate to whom the objection relates to inform the court of the matters disclosed to the other side earlier than the start of the substantive hearing at which he proposes to act so that the court can consider the matter for itself at an early stage.
Public funding for representation
9.25The circumstances in which article 6 requires public funding for representation are discussed in chapter 3.
9.26If a representative receives funding from the Legal Services Commission (or legal aid in Scotland) in respect of proceedings before the Upper Tribunal, a copy of the funding certificate must be sent to the tribunal and notice of the funding to all the parties.
26UTR r18.9.27Parties who are not represented may benefit from the services of the Pro Bono Units or Free Representation Units.
If the representative is not available
9.28This raises the issue whether to postpone or adjourn, which is discussed in chapter 8. In
R v Social Security Commissioner ex p Bibi,
27Unreported 23 May 2000 at [18]. Collins J said: ‘I appreciate that there is no absolute right to representation, but there is an absolute right to be dealt with fairly …’
The duty to co-operate
9.29This is discussed in chapter 3. Representatives are not entitled to watch a tribunal make a remediable error and then use that as a ground of appeal against the tribunal’s decision. The representative should draw these matters to its attention.