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District Court
(8) Rule 7 of the District Court Rules, 1948, allows
any party to any proceedings in that court to appear by
his solicitor. The rule also provides,
inter alia
that in
summary proceedings the Justice may give leave to a
defendant's father, son, husband, wife or brother to
appear and be heard on his behlaf where the Justice is
satisfied that the defencant is from unavoidable cause
unable to appear.
Circuit Court
(9) The solicitor's right of audience in the Circuit
Court is based on usage. The Rules of the Circuit Court
make no express provision for the solicitor's right of
audience as an advocate but they do provide (in rule 1
of Order 59 of the 1950 Rules) that "any act required
by these Rules to be done by a party may be done by
him in person or by his Solicitor".
High Court
(10) The position as to the solicitor's right of audi-
ence before the High Court in bankruptcy matters is
governed by section 372 of the Irish Bankrupt and
Insolvent Act, 1857, whereby a right of audience is
given to "every Attorney or Solicitor of any of the
Superior Courts of Law or Equity in Dublin". When
this Act was passed, the Court of Bankruptcy in Ireland
was a separate court in which much of the business
was done before commissioners and registrars. The Court
of Bankruptcy did not become part of the High Court
of Justice in Ireland on the establishment of that Court
by the Supreme Court of Judicature Act (Ireland),
1877, and did not do so until 1897 when the solicitor's
right of audience in bankruptcy matter? was preserved
by the Supreme Court of Judicature (Ireland) (No. 2)
Act, 1897.
(11) Solicitors have been given the right of audience
in certain circumstances to appear before the High
Court when exercising its criminal jurisdiction. The
position is dealt with by Rule 8 of Order 85 of the
Rules of the Superior Courts which reads :
"An accused person may be represented and appear
by a solicitor (without counsel) in the Central
Criminal Court (by leave obtained before the day
of trial) where the Central Criminal Court is
satisfied that such accused person has not sufficient
means to engage and retain counsel on his behalf,
and in any such case such solicitor shall have the
right of audience (including the right to address
the jury)."
Court cf Criminal Appeal
(12) Rule 31 of Order 86 of the Rules of the
Superior Courts reads :
"31. In all preliminary and interlocutory proceed-
ings and applications the parties thereto may be
represented and appear by a solicitor alone."
Position of qualified assistant
(13) The position of a person engaged as a qualified
assistant solicitor in regard to rights of audience is
governed by section 65 of the Solicitors Act, 1954, which
reads :
"65. Where a solicitor enters an appearance or is
acting generally for a party in an action, suit,
matter or criminal proceedings, a solicitor qualified
to practice who is acting as his assistant shall have
a right of audience therein I n any court or tri-
bunal in which the first-mentioned solicitor has a
right of audience."
APPROACH TO QUESTION OF
RIGHT OF AUDIENCE
14. As already indicated in paragraph 3, this Com-
mittee is presently engaged in considering the question
whether a voluntary fusion of the professions of the
solicitor and the barrister would be in the interests of
litigants. While the question whether solicitors should
have a general right of audience in the High Court
and Supreme Court is relevant to the question of
fusion, it is our opinion that it merits separate considera-
tion in the existing context of the division of the legal
profession into the two branches of solicitor and bar-
rister.
ARGUMENTS AGAINST CHANGE
IN PRESENT POSITION
(15) The main arguments advanced to us in support
of the existing position are :
(i) Advocacy in court is a specialised function
which, in so far as the High Court and Sup-
reme Court are concerned, is best left to those
whose professional training and experience
specially fits them for it. At present this train-
ing and experience are to be found in the
barrister's field, while other aspects of litiga-
tion, such as ascertaining from prospective
witnesses the facts of a case, are within the
solicitor's domain. Unskilled advocacy may be
detrimental to the client in that injustice may
be done to him. The technicalities of the law
of evidence are formidable particularly in
criminal proceedings and some have been con-
victed who might otherwise have been acquit-
ted if a particular line of cross-examination
had been avoided. This has happened even
with experienced counsel defending an accused
person and would happen much more easily if
his defence were in the hands of a person
inexperienced in or infrequently engaged in the
specialised function of advocacy.
(ii) Proceedings in court would be prolonged and
the outcome made less predictable where in-
experienced advocates do not appreciate what
requires to be proved and what need not be
proved in a particular case.
(iii) An objective approach to the conduct of a
trial would be exceedingly difficult when an
advocate has been closely associated with the
client's case as a solicitor frequently is. One of
the advantages of the present system which
confines the right of audience in the High
Court to barristers is that it provides an inde-
pendent and impartial advocacy. This is be-
cause the barrister has no direct contact with
the client but only accepts instructions through
a solicitor. The solicitor, on the other hand,
has a commitment to his client with whom he
may be on close personal terms and on whom
he may depend for a substantial proportion of
his living over a period of years. A barrister
seldom acts for a client with whom he is
personally acquainted and rarely acts for the
same client with any great regularity.
(iv) The judge's task is made easier when the
advocate shares the same professional exper-
ience in advocacy as the trial judge has ex-
perienced.
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