Delegation

Gregory and another v Turner and another (CA TLR 21 February)

Can a person by power of attorney confer on another the right to appear in court as his lay advocate? The claimants had granted enduring powers of attorney to John Morris in connection with proceedings arising from their boundary dispute with the Turners. There is no doubt that Mr Morris was able to attend the small claims hearing as a lay representative on the claimants’ behalf, although insofar as the claimants did not personally attend, he could do so only in the discretion of the district judge. The grant of attorney is a formal instrument by which one person empowers another to represent him or act in his stead for certain purposes. There are well established limitations on the powers that can be granted, for example, the power to make a will cannot be delegated by power of attorney. The Courts and Legal Services Act 1990 confirmed the established position before its enactment, that an individual was allowed to appear in his own case in any court, regardless of his qualifications. However, there was nothing to suggest that before the Act, that right could be exercised by an agent, other than one properly qualified for the purpose. Nothing distinguished powers of attorney in relation to litigation from those which could be enjoyed by an ordinary agent. The ordinary rule was that an agent stood in the shoes of his principal to the extent of his authority, whether conferred by a power of attorney or not. To construe the reference to a ‘party’ as including the agent of a party would drive a coach and horses through the purpose of the Act, which was to impose effective controls on rights of audience and conduct of litigation in accordance with the general principle. A right of audience was a personal right, which could not be delegated. Were it otherwise, there would be no purpose in the careful restrictions imposed in the public interest on those who could appear as advocates in proceedings.