Judges refuse request for barrister to lead in VAT appeal
The Court of Session cannot grant rights of audience to individuals to enable them to represent litigants in particular cases, Scotland's senior judges have ruled.
Lord President Gill and Lord Justice Clerk Carloway, along with Lord Menzies, have refused an application to allow Philippa Whipple QC, an English barrister, to appear on behalf of Taylor Clark Leisure plc in an application for leave to appeal against a decision of the Upper Tribunal in the applicants' claim for repayment of VAT.
Ms Whipple, a VAT specialist, had presented the applicants' case before the First-tier Tribunal and Upper Tribunal, appearing with advocate Philip Simpson, now also a Queen's Counsel. The applicants wished Ms Whipple to present their appeal to the Court of Session and Mr Simpson moved the court to exercise its discretion and grant permission for her to appear. He did not ask for rights of audience; however Lord Gill in his opinion said the distinction was meaningless.
If Ms Whipple had been qualified in another EU member state, she would have been entitled to appear on satisfying the court of certain matters.
Mr Simpson argued that the court had erred in a similar decision in 2011 (Secretary of State v UK Bankruptcy Ltd) in holding that the court had no inherent power to grant rights of audience. This had been based on a misunderstanding of the College of Justice Act 1532, as the part covering rights of audience had been made by the judges themselves under powers granted by the king, and later ratified by him. The court could therefore modify it by its inherent power.
Lord Gill, who delivered the leading opinion, acknowledged the history, but said the precise status of the provisions was "neither here nor there". He explained: "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." It was part of the system of Scottish justice protected by the Act of Union, and it was Parliament which now asserted the power to legislate on rights of audience, as it had in 1990.
Therefore the 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".
He continued by stating that the application would in any event have been refused as a matter of discretion: a litigant's right to be represented by the counsel of their choice was not absolute, and there was "good reason why rights of audience should be constrained by legal rules".
The Lord President added: "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."
A Scottish advocate in a similar position in England & Wales would be entitled to apply to the Bar Council of England & Wales for temporary admission, subject to producing certain certification and paying a fee.