The Gazette 1972

Committee on Court Practice

and Procedure

The Solicitor's Right of

Audience

THIRTEENTH INTERIM REPORT

OF THE COMMITTEE ON

COURT PRACTICE AND PROCEDURE

To :

Desmond O'Malley, Esq., T.D.,

Minister for Justice

MAJORITY REPORT

INTRODUCTION

(1) The Committee on Court Practice and Procedure

were appointed by the Minister for Justice on the 13th

April, 1962, with the following terms of reference :

(a) to inquire into the operation of the courts and to

consider whether the cost of litigation could be

reduced and the convenience of the public and

the efficient despatch of civil and criminal busi-

ness more effectively secured by amending the

law in relation to the jurisdiction of the various

courts and by making changes, by legislation or

otherwise, in practice and procedure;

(b) to consider whether, and if so to what extent,

the existing right to jury trial in civil actions

should be abolished or modified;

arising out of the Committee's terms of reference

as may from time to time appear to the Com-

mittee to merit immediate attention or to war-

rant separate treatment.

(2) The Committee have taken the topic of the

Solicitor's Right of Audience as the subject-matter of

this their Thirteenth Interim Report. The term "right

of audience" as used in this Report means right of

audience as an advocate.

(3) The Committee sought from the persons and

bodies whose names are set out in Appendix A hereto

views on the subject matter of this Report and on the

question of whether a voluntary fusion of the pro-

fessions of the solicitor and the barrister would be in

the interests of litigants. The Committee received views

on these subjects from the persons and bodies named in

Appendix B hereto. A small number of others wrote to

say that they had no news to offer. We intend to devote

a later Interim Report to the latter topic.

(4) The Committee also, by notice published in the

daily press, invited members of the public to submit

views on these topics. These matters, however, are not

ones which have interested the public sufficiently to

reply to our newspaper notices. It is now over fourteen

months since the press notices appeared and replies

have been received from only three persons (two of

whom were solicitors). We wish to express our gratitude

to all those who assisted our work by offering their

views either in reply to our letters seeking assistance or

in response to the newspaper notices.

PRESENT POSITION

(5) The right of audience in the High Court and

Supreme Court is not based on statute or rule of court

but on -usage and practice. It is not therefore a question

of a right but a privilege given by the Court. Except

when the procedure can be and has been prescribed by

statutory authority or has been settled by long usage,

a court or other tribunal has the right to regulate its

own proceedings—see

Collier v. Hicks

[1831], 2B. &

Aid. 633, at pp. 668, 670, 672. The long established

usage of the former Superior Courts in this country and

in Great Britain was that solicitors have not had a

general right of audience in the Superior Courts. This

usage has been continued in the High Court and

Supreme Court since the establishment of the State.

(6) The general picture within the State is that,

while barristers have a right of audience in all courts,

solicitors have such a right in the District Court and in

the Circuit Court but, save for some minor exceptions,

not in the High Court. The right of audience in the

Supreme Court is confined to members of the Bar.

When a barrister is formally called to the Bar in the

Supreme Court by the Chief Justice, he is in express

terms admitted to practice as an advocate in the Courts

of Ireland. High Court Judges have on occasions per-

mitted solicitors a right of audience in a case to move

an adjournment or seek some other interlocutory

order. A litigant in person is permitted to exercise a

right of audience to make his own case in all courts

and it is believed that this right of access to the courts

established under the Constitution is a right guaran-

teed by the Constitution. The question as to whether a

right of audience can be exercised other than as a

litigant in person or by a member of the legal pro-

fession was considered by the Supreme Court in two

recent decisions, viz:

Battle v. Irish Art Promotion

Centre Ltd.

[1968] I.R. 252 and

The State (Richard

Tynan)

Governor of Portlaoise Prison (Re Michael

Woods)

delivered 19th December 1967 (not yet re-

ported). In the former case a lay person was not per-

mitted to act as advocate for a limited company of

which he was the managing director and in which he

was the owner of one half of the issued shares. In the

latter case it was held that a lay person was per-

mitted to make a complaint to the High Court that

another person was being detained otherwise than in

áccordance with law and to move the Court to enter

into an enquiry into the matter pursuant to Article 40

of the Constitution. It was also held, however, that

when the detained person was produced in Court pur-

suant to the order of the Court, the lay person whose

complaint had put the inquiry in train was not en-

titled to appear as an advocate for the detained person

although he was permitted to advise him and assist him

in the examination of the cause of the detention offered

in justification by the person holding custory of the

person so detained.

(7) The provisions of the relevant statutes and rule?

of court regulating Jhe solicitor's right of audience are

mentioned in the following paragraphs.

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