HL Deb 09 December 2004 vol 667 cc1029-32

2.22 p.m.

Baroness Ashton of Upholland rose to move, That the draft order laid before the House on 3 November be approved [34th Report from the Joint Committee, Session 2003–04].

The noble Baroness said: My Lords, this order is presented under Section 29 and Part I of Schedule 4 of the Courts and Legal Services Act 1990, and seeks to grant fellows and ordinary members of the Institute of Trade Mark Attorneys rights to conduct litigation and rights of audience in England and Wales. I shall explain the role of fellows and ordinary members in just a moment.

Historically, the right to conduct litigation has been the preserve of solicitors and rights of audience have been the preserve of barristers and, to a lesser extent, solicitors. However, since the relevant aspects of the Courts and Legal Services Act 1990 were enacted, there has been a gradual extension of bodies authorised to have rights of audience and rights to conduct litigation—first, to the Institute of Legal Executives in 1998 and, secondly, to the Chartered Institute of Patent Agents in 1999.

This order, if approved, will extend rights of audience and rights to conduct litigation to a further category: those fellows and ordinary members of the Institute of Trade Mark Attorneys who have completed the LLM course in intellectual property litigation. Ordinary members are defined as those who have either passed the institute's qualifying examination for entry on the Register of Trade Mark Attorneys or have become registered after gaining certain other recognised qualifications in intellectual property. Fellows are individuals who, before election to fellowship, were ordinary members for at least five years, who have practised in trade mark agency work and who, in the opinion of the Council of Trade Mark Attorneys, have contributed significantly to the aims and objectives of the institute.

The institute first submitted its application for authorised body status in June 1999 to the Lord Chancellor, who subsequently referred it to the Advisory Committee on Legal Education under the procedure set out in Schedule 4 of the 1990 Act. In October 1999, the committee advised that in general the application was strong but would benefit from further improvement in certain areas. Following that advice, ITMA submitted a new application in March 2001. This application was referred to the Legal Services Consultative Panel, ACLEC's successor, and the OFT for consideration. Both those bodies rigorously scrutinised the application and subsequently advised the Secretary of State. The advice of the panel is publicly available on the DCA website. The application has also been scrutinised by the designated judges who, on 16 July 2004, confirmed their support for ITMA's application. On that basis, the Secretary of State has approved the order that I lay before you today.

The order will not affect the rights that are currently held by ITMA. It will enable the institute to grant to its members the right to conduct litigation in the Chancery Division of the High Court, including the Patents Court, in the county court, including the Patents county court, and in community trade mark courts; and to conduct appeals from the Comptroller General of Patents Designs and Trade Marks, the patents county court, the county court, and the Chancery Division of the High Court, in respect of any matter relating to the protection of any trade mark or design, or as to any matter involving passing off', and certain ancillary matters relating thereto.

The order will also enable the institute to grant rights of audience in hearings in the county court, including the patents county court, in trade mark and design litigation; hearings before the appeal tribunal constituted by the Registered Design Act 1949; and hearings in private on interim matters in the course of trade mark and design litigation. The institute will be able to grant these rights to suitably qualified ordinary members and fellows who have completed the LLM—Master of Laws—course. Those fellows of the institute who are solicitors or barristers may be granted an exemption from completing the course as they already hold those rights. This course will develop a knowledge base to supplement the material that is already covered by the institute's examinations.

The effectiveness of the authorisation is currently limited by the fact that trade mark cases can be heard only in the High Court. As a result, while trade mark agents would nominally be able to bring cases in the county court, given the specialised nature of their work, it is highly unlikely that there would be any cases that they would be qualified to handle. As such, they would remain at a disadvantage to other litigators, such as patents agents, who have been able to bring patents cases in the county courts for some time. To ensure a more even balance between these two sectors, in particular, the Government intend to bring forward a separate, complementary order under Section 1 of the Courts and Legal Services Act 1990 specifically to extend the jurisdiction of appropriate county courts to allow them to hear trade mark cases. That additional measure has the full support of the senior judiciary.

The order will allow clients of trade mark agents, who need to use the courts, to instruct and deal with one person. The trade mark agent will not have to instruct a solicitor and/or a barrister in order to progress his client's case. That could lead to lower costs for businesses, in particular small and medium-sized companies by cutting out an unnecessary tier of expense. Of course, the trade mark agent would be able to go straight to court.

One consequence of the success of this application is that fellows who become authorised advocates or litigators may need to come within the Jurisdiction of the Legal Services Ombudsman. The Legal Services Ombudsman oversees the handling of complaints about members of the legal profession. The support and advice of the ombudsman would be important in seeking to ensure the standards of service provided by fellows of the institute are maintained. With that in mind, we are currently liaising with the Legal Services Ombudsman to assess whether or not an additional order will be necessary to extend the LSO's jurisdiction to cover ITMA.

I should stress that the lack of an order at this time will cause no harm to clients. As noble Lords will notice, the order will not come into force until 1 April 2005, when the jurisdiction of the county courts is extended. If an order is needed, it can be laid early next year. The institute has its own complaints handling system. Complaints regarding litigation are dealt with by the litigator conduct committee, while those that concern non-litigation matters are dealt with by the professional guidance and disciplinary committee.

Approval of this instrument will lead to a small but important increase in the number of people qualified to appear before the courts. Trade mark agents work in a small, highly specialised field and it is right that the public are given every opportunity to draw on the expertise within the profession. I commend this order to the House. I beg to move.

Moved, That the draft order laid before the House on 3 November be approved. [34th Report from the Joint Committee, Session 2003–04].—(Baroness Ashton of Upholland.)

Lord Goodhart

My Lords, I note that the acronym of the designated body is ITMA, which arouses in some of us a certain nostalgia at the thought of Colonel Chinstrap, Mona Lot and the members of the original ITMA appearing in the courts of evidence. Having said that, I can see that the order has gone through a very thorough process, and we are entirely happy that the trade mark attorneys should be given the right to appear in court in accordance with it.

Lord Kingsland

My Lords, I entirely agree with the sentiments expressed by the noble Lord, Lord Goodhart, and have nothing to add.

On Question, Motion agreed to.