Can accountants represent a company at court?
At Fortune Law, we work closely with accountants on a wide range of company matters including company restorations, shareholder disputes, due diligence and fundraising. While accountants are qualified to provide many advisory services to their clients, litigation itself requires particular attention.
We are often asked by accountants whether they can represent a client at court, for example at a company restoration hearing or a hearing for the winding up of a company. Accountants do have the right to represent a client at court, but only in limited circumstances.
What are reserved legal activities?
The Legal Services Act 2007 (LSA), which is the legislative framework for the regulation of legal services in England and Wales, categorises certain activities as “reserved legal activities”. There are 6 reserved legal activities:
- the exercise of a right of audience,
- the conduct of litigation,
- reserved instrument activities,
- probate activities,
- notarial activities and
- the administration of oaths.
Representing a company in court proceedings involves the performance of reserved legal activities, namely, ‘exercising a right of audience’ and ‘conduct of litigation’.
A right of audience means the right to appear before or address a court, including the right to call and examine witnesses.
Conduct of litigation includes issuing of proceedings before any court, the commencement, prosecution and defence of such proceedings and the performance of any ancillary functions.
Who can perform reserved legal activities?
To be able to perform a reserved legal activity, a person must either be authorised to do so by an ‘Approved Regulator’ under the LSA or be exempt from the requirement to be authorised.
Different professionals have different Approved Regulators. For example, the Approved Regulator for solicitors is the Solicitors Regulation Authority (SRA), for barristers, it is the Bar Standards Board (BSB) and for chartered accountants, the Institute of Chartered Accountants in England and Wales (ICAEW) and the Association of Chartered Certified Accountants (ACCA). However, currently, the only reserved legal activity that a chartered accountant is able to perform is probate work. Neither the ICAEW nor the ACCA can authorise their members to perform any other reserved legal activities, including exercising a right of audience and conduct of litigation
It is possible that an accountant can be “exempted” from this restriction by, for example, a court, although in practice this is often difficult to obtain. There are also some limited circumstances where the exercise of certain legal activities do not need to be by “authorised persons”, such as the Small Claims Court.
Can an accountant be an “exempt person” with respect to the exercise of a right of audience?
In accordance with the provisions of the LSA, a person is exempt if the person is not an authorised person but has a right of audience granted by that court in relation to those proceedings. This means that unless an accountant has been permitted by the court to exercise the right of audience, he or she cannot exercise it.
A person may also be exempt, if their work includes assisting in the conduct of litigation, for example assisting under instructions given by and supervision of any authorised person in the conduct of litigation (such as a qualified solicitor or a barrister), and where the proceedings are being heard in chambers in the High Court.
This means that an accountant may be able to represent a company in proceedings that are being held in chambers in the High Court if he or she is assisting in litigation, under the instructions and supervision of any person authorised to perform the reserved legal activity of conducting litigation, such as a qualified solicitor.
Is an accountant an “exempt person” with respect to the conduct of litigation?
For the purpose of the conduct of litigation, a person is exempt if they are not an authorised person in relation to that activity but have a right to conduct litigation granted by a court in relation to those proceedings.
This means that an accountant will be considered as exempt with respect to conduct of litigation and therefore be allowed to conduct litigation, if they have been permitted by the court to conduct litigation.
Where else can accountants practise legal activities
Although rights of audience and the conduct of litigation are both reserved legal activities, the rules of certain courts/tribunals do not mandate that these rights should only be exercised by an authorised person. Accordingly, a person who is not authorised may exercise a right of audience and/or conduct litigation in certain circumstances.
Exceptions include the Small Claims Court and Tax and other Tribunals. These will be subject to the particular rules of that court or tribunal and may include conditions such as obtaining the prior permission of the court/tribunal. Each case should be carefully considered before proceeding.
Consequences of breach
It is an offence for a person to carry on an activity which is a reserved legal activity without being entitled to carry on such activity. The maximum punishment where a person is found guilty of this offence is imprisonment of up to two years or a fine or both. An individual may also be found guilty of contempt of court and punished accordingly.
We regularly advise accountants and their clients on both litigation and non-contentious matters. These include restoring companies to the Register at Companies House, providing independent legal advice on commercial lending arrangements, the sale and purchase of businesses and a wide range of other commercial matters.
If you would like to meet and discuss further on how we may support you and your clients, then please call Shainul Kassam on 0203 553 9963 or at firstname.lastname@example.org