The Gazette 1972

APPROACH TO QUESTION OF RIGHT OF AUDIENCE

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."

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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