Court’s ‘inherent power’ does not extend to granting ‘ad hoc’ rights of audience, Inner House rules

The Inner House of the Court of Session held that the court’s “inherent power” did not extend to the granting of rights of audience and that any extension would be a matter for Parliament.

The Lord President, Lord Gill (pictured), sitting with the Lord Justice Clerk Lord Carloway and Lord Menzies, heard an application by Taylor Clark Leisure PLC asking the court to exercise its discretion and grant permission for Philippa Whipple QC, a barrister at One Crown Office Row in London, to appear and represent the company in appeal proceedings before the Inner House.

The dispute with Her Majesty’s Revenue and Customs concerned the applicant’s entitlement to repayment of Value Added Tax which was said to have been overpaid for many years, and involved a straightforward question as to the meaning of section 80 of the Value Added Tax Act 1994.

The court was told that Ms Whipple was a “specialist in VAT law” who had been involved in the tax dispute since 2009, and had appeared with Philip Simpson of the Scottish Bar when the case was heard by the First Tier Tribunal and by the Upper Tribunal in Edinburgh.

The single bill stated the court’s inherent power “entitled”it to grant the single bill and that in the circumstance it should “exercise its discretion to grant permission for to appear”.

The single bill was opposed and in view of its significance, the Dean of Faculty, as leader of the Bar, and the Law Society of Scotland, as representing solicitors with rights of audience, were invited to make written submissions and, if so advised, to appear at the hearing, which they duly did.

On behalf of the applicant it was argued that the decision of the Inner House in the 2011 case of Secretary of State for Business, Enterprise and Regulatory Reform v UK Bankruptcy Ltd - “the UK Bankruptcy case” - that it was not within the inherent power to extend rights of audience, rested on a “misunderstanding” of the College of Justice Act 1532, which established the College of Justice and is the foundation of the court.

It was submitted that the provisions of the 1532 Act were equivalent to “subordinate legislation” and that no other statutory provision precluded the court’s granting of rights of audience to any suitable person in its discretion.

The applicant further said that if Ms Whipple should appear before the Inner House, her appearance should be subject to the conditions that she is assisted by a practising member of the Faculty of Advocates, and that there is lodged in process a certificate by the Bar Council of England and Wales vouching Ms Whipple’s status as a practising Queen’s Counsel and her “good standing”.

The Lord President explained that in the UK Bankruptcy case the court concluded that its inherent power did not extend to the granting of rights of audience and that the possibility of further extension of rights of audience should be a matter for the Parliament, after due process of consultation, rather than by “ad hoc judicial decision”.

The judges ruled that the decision in that case was “sound” and refused the application.

In a written opinion, the Lord President said: “The question whether the rule has the status of primary or secondary legislation is neither here nor there. What matters is that, subject to certain statutory modifications in the modern era…the rule has, by common understanding over the centuries, been part of the law of Scotland.

“In my view, it is now an established principle of the Scottish constitution. I therefore remain of the view that this court should not take it upon itself to grant ad hoc rights of audience, still less to exercise the inherent power, where Parliament gave itself that power but refrained from exercising it.”

Lord Gill added: “In my view it would be inimical to the interests of this court if litigants were free to bring to it counsel of their choice from other jurisdictions. Counsel in Ms Whipple’s position have available to them the option of joining the Scottish Bar by the accelerated procedures that the Faculty of Advocates now offers. That seems to me to be a sensible way to satisfy the applicant’s preferences.”

The Lord Justice Clerk and Lord Menzies agreed with the Lord Presdeint that it was in the “interests of justice” in Scotland that the application be refused.

Lord Carloway said: “It is important in any legal system that there are settled rules concerning rights of audience which are applicable to all cases. Such rules are in place in Scotland. They exist in order to maintain a quality of representation in the court for the benefit not only of the court itself, but also the litigants appearing before it.”