ENGLAND & WALES Law and Practice Contributed by: Damian Taylor, Olga Ladrowska, Christy Conlon and Nathan Barrow, Slaughter and May
1.4 Legal Representation in Court Legal representation in the courts of England and Wales involves two primary rights: • the right of audience, which is the right to appear before and address a court, including calling and examining witnesses; and • the right to conduct litigation, which covers the right to issue legal proceedings, the commence- ment, prosecution and defence of those proceed- ings, and the carrying out of necessary administra- tive tasks for a case. The general principles governing these rights are that: • only barristers have the right of audience in the High Court and higher courts such as the UK Supreme Court, as well as solicitors who have obtained additional qualifications granting them higher rights of audience; • solicitors without higher court qualifications have rights of audience in lower courts only (those below the High Court); • only solicitors have the right to conduct litigation, as well as barristers who have specific authorisa- tion; • the right to conduct litigation is personal to the relevant individual and is not conferred simply by being supervised by someone who holds that right, or by being an employee of a solicitors’ firm or another authorised body; • litigants in person, who appear in court without legal representation, have both rights of audience and rights to conduct litigation in respect of their cases in all courts; and • foreign lawyers registered with the Solicitors Regulation Authority may assist in the conduct of litigation under the instructions and supervision of a person who is authorised to conduct litigation, and may have rights of audience for such litigation if the proceedings are held in Chambers in the High Court or a County Court.
able discretion in setting deadlines for each stage of the litigation process. While the courts are focused on effective case management and are keen to avoid liti- gation delays, it is not uncommon for straightforward commercial cases to take over a year to reach trial, with more complex cases taking significantly longer. In the Business and Property Courts, the Shorter Tri- als Scheme provides a faster route to trial, potentially enabling litigants to move from filing to judgment in under a year. Alternatively, the Flexible Trials Scheme offers an approach that allows litigants to adapt trial procedures to better suit their specific cases. 1.3 Court Filings and Proceedings The legal system of England and Wales operates on the basis of “open justice”, which means that justice should be done in the open, with courts of all lev- els accessible to the public and the media. In prac- tice, this means that the public can obtain key court documents from the court file, such as statements of case (including a claim form, particulars of claim and defence) and any judgment or order given or made in public, unless the court orders otherwise. Access to other documents from the court records – such as witness statements, expert reports and skeleton arguments – is available only with the court’s permis- sion (although a pilot scheme is operating in certain courts that allows such documents to be accessed as of right). Applicants are required to explain why they are seek- ing access and how granting such access would advance the principle of open justice. In determining such applications, the court will perform a balancing exercise, weighing up the principle of open justice on the one hand against any risk of harm arising from disclosure. The principle of open justice also means that, as a general rule, hearings are held in public, and any- one is free to attend. In exceptional circumstances, such as cases concerning especially confidential or commercially sensitive material, litigants may make an application for a private or “closed court” hearing. However, such cases are rare.
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