Perceptions and Expectations of Litigants in Person

– A commercial Litigator’s perspective

This blogpost is written as a polemic. I hope to encourage some open and constructive debate on the subject of Litigants in Person (LiPs). It is not based upon any scientific research, but rather my general observation of things as a commercial Litigator, having dealt with many thousands of cases both defending, and bringing claims against LiPs, and in acting for them as a McKenzie Friend.

My focus in this blogpost is upon civil/commercial litigation and not criminal litigation. Although the logic may be the same, the factors for a bench of Magistrates, or a Judge to make a decision are based upon evidential burdens being far higher ‘beyond all reasonable doubt’, rather than on ‘a balance of probabilities’, as in civil cases.

During my career I have met many wonderful and varied LiPs.

Some perceived expectations:

You are right. The truth will come out in Court. The Judge and the Courts exist to see that the truth prevails. The Courts will punish those who lied. You will get everything you desire, even if you do not follow Court procedures properly, or comply with Court Orders or directions of Court. The case is simple, and should be over in a matter of weeks. If you win, you can expect to gain in costs the same amount as Lawyers charge, and therefore the case if won, is an investment.

Some likely realities to those perceived expectations:

You may be right, but just because you are, does not mean the Court will find in your favour either fully or partly. A number of perceptions of truth may come out in Court, but it is unlikely that both Parties in litigation will be right. If one person is right, someone else by deduction may be found wrong. The Court is interested in plausibility, and preference to credibility on a balance of probabilities in the eyes of the Judge, having regard to case law and statutes. A civil Court is not there to punish those who got it wrong. They are there to award damages and recompense, with awards of costs in favour of those who were deemed to have succeeded in a claim. That is different from a criminal court whose objective is to punish and to deter offending and re-offending. You very rarely get everything you ask for in a case. Some things that you ask of a Court may not be in their jurisdiction to award. Courts expect you to comply with Court Orders and directions of Court. Some cases are swift, and others are not. In the High Court, cases can last typically 12 months to 18 months, and sometimes longer depending upon complexity and Court availability for a trial date. There are restrictions on charges for LiPs, which may well be outdated, and seem unfair. Until the Law changes, the figures are relatively derisory.

Perceptions:

Generally speaking, no one wants to become embroiled in Litigation. Either they have been wronged, or someone has wronged them, and they demand justice.

There are not necessarily winners and losers in Litigation. You may win, but never enough. You may win, and have a Judgment in writing, but find that enforcement of the same is impossible, or that there are obstructions that prevent you being paid. You may lose, and feel the Court was against you. You may lose, even though you were right…or at least you believed you were right. Does the truth of the matter, matter? Or is it a case of who in the eyes of the Court is believed to be more right? After all, people who go to Court all believe they are right, and that if right is on their side, they will win. This is not so: The Court does their best to listen; to understand. Ultimately the Court makes a decision based upon their perception of the facts; their perception on the strengths or weaknesses of an argument; plausibility wins the argument on a balance of probabilities, which establishes the facts. Then the case law and the Statutes are applied, and a decision is made.

Someone’s World crashes. Our belief in the truth, when a Judge does not agree, causes resentment; conspiracy theories begin. One goes quite mad knowing the reality of the situation was not followed by the Court. Should you live with such a decision?

If I were asked such a question, I would ask for a full copy of the Court bundle, and a full transcript of the case, the Judgment, and the Judgment itself. I would tell you to move fast because you have only a limited time to appeal a decision, (sometimes 14 days, and sometimes 21 days, but generally the latter), which may be the right decision based upon the information and evidence placed before the Court at the time.

Can you take ’No’ for an answer? If not, and a variety of Judges have considered and re-considered your Appeal, and have all concluded against you, then you should know when ’No’ is the answer. Close the door on this chapter in your life and move on!

Why do I write in such a way? I am frustrated at seeing too many good people waste their lives pursuing their perception of truth and justice because a Court has not agreed with them. It becomes an illness; an obsession. What is it all for?

‘Aquila non capit muscas’ (`the Eagle does not bother with the mosquitos`). Do you want to be right or do you want to be happy?

Those who can’t take ’No’ for an answer, eventually find themselves on the receiving end of a Civil Restraint Order, having been branded a Vexatious Litigant.

My starting point would be to say it was likely that the Court got it right. Why? Judges are selected based on their sound judgment and perception; their ability to establish the facts and the issues. Are you as a LiP so important that a Judge would want to go against you, because of you? Is anyone ever that important that a Judge would take such a stance in favour of your opponent? From my experience of Judges, that has perhaps been a fair comment made by someone wronged, perhaps once in 15 years.

Let us briefly explore the costs: The cost financially, emotionally, psychologically? You do not just become embroiled as a LiP yourself. It affects your family, your friends. You become obsessed by the case. It eats you up. It gnaws away at you so that the entire focus of your life becomes the case. People tire of you. Your family ties are strained. Some divorce. Some become estranged from their friends and family. Everyone suffers when you take on a case yourself. There are few who have the discipline to cut off at the end of supposed business hours. For a LiP, what are your hours?

A Lawyer is paid to deal with your case. To take some of that angst away from you.

Emotionally, you as a LiP are subjective. You see things the way you see it. You have your own perception of things, your own interpretation of the Law, of procedure, and how those things should interact. Perhaps as a LiP, you feel that Court procedure is of no consequence, and the truth of the matter should be what the Court strives to learn and rule upon.

Lawyers ought to be objective. They should know the Law and the procedure. They should guide and lead you on what is and is not achievable. They should seek to persuade you as to what is a fruitless pursuit, and what issues you should or should not focus upon.

‘All things are subject to interpretation. Whichever interpretation prevails at a given time is a function of power and not truth’ – Friedrich Nietzsche

‘What you see and what you hear depends a great deal on where you are standing. It also depends on what sort of person you are’ – CS Lewis, The Magician’s nephew

’There are things known, and there are things unknown, and in between are the doors of perception’. – Aldous Huxley

A. Those who WILL NOT take legal advice:

There have been those who have been jilted by Lawyers who have over-charged or have promised them a certain outcome, which has not transpired. There are those who have gone to Court and have been disillusioned by the way the Courts have treated them and feel there is a conspiracy between Lawyers and the Courts to all protect themselves. There are those who cannot accept that a decision made by a Court is the right decision because it did not go their way. There are those whose perception of things is that Lawyers do not care about the client; They are more interested in how much they can run up a bill and lead a client a merry dance to achieve their goal of maximising profit.

A deep mistrust of the Legal system…a deep mistrust of Lawyers…a deep mistrust of Judges…a deep mistrust of Courts…. Of procedure…of case law…of Acts of Parliament…their human rights affected…the list goes on and on.

B. Those who CANNOT afford to take legal advice:

Their income or savings may be too significant that the threshold of Public Legal Funding/Legal Aid is overreached, or certain subject matters may not be covered for Legal funding. They want legal advice but have limited access to it via Pro Bono Centres, Citizens’ Advice Bureaux. These may be sufficient for straight cases, but not for complex cases.

C. Those who CAN afford to take legal advice, but appreciate they are limited as to their knowledge of procedure and the Law and may seek limited legal advice for that purpose:

Similar to ‘A’ above, but appreciate they require assistance with preparation of their cases and presentation in a way that the Court demands. Civil Procedure Rules 1998 govern the manner and way in which various Court directions must be complied with. Doing your best, without understanding or complying, will lead to non-compliance. The Courts will overall be courteous and give LiPs the benefit of doubt. The Courts will, in my observations, bend over backwards and have the patience of a Saint to deal with LiPs. They will give further time extensions. They will assist, or give LiPs guidance to comply. Ultimately if as a LiP you do not comply in terms of time, or content in what is asked of you, the Court will impose sanctions, which may be as harsh as debarring you from adducing evidence, or striking out your case/defence as your status may be. Rules and procedures are set with two things in mind:

• i. For the Parties to understand and appreciate the issues between the Parties and to encourage resolution and settlement of a case without resorting to a full-blown Court trial;

• ii. To set the case out in such a way that the Court can properly consider the evidence.
  
  As an aside, there is an implied interpretation that compliance with rules and directions of Court is synonymous with credibility and an acknowledgement that the Court decides.
  
  Non-compliance with Orders and directions could lead to a finding of being in contempt of Court. This can be punishable with a fine and/or imprisonment.

D. Those who CAN afford to take legal advice, but feel their knowledge and perception of the Law and procedure is perfect:

Maybe you can read and understand Civil Procedure perfectly well. Good luck to you if you can. Lawyers are, like LiPs, only human. They read the same books, and take in the same information. All is good. Good luck. Perhaps you are a LiP well versed in civil procedure and you win case after case. Perhaps you should think about being a Lawyer. For the vast amount of LiPs I have encountered, this is not the case.

I have encountered Lawyers who have been LiPs. As the adage goes: ‘A man who is his own lawyer, has a fool for a client’. With hindsight, although the procedure was of no concern, the ability to argue and consider the issues objectively was overtaken by the subjective emotion of being personally caught up in a case.

See ‘C’ above, and may the L-rd have mercy upon your soul.

My position:

I am first and foremost a Solicitor with over 15 years of post-qualification experience. I am a Solicitor-Advocate with higher rights of audience in both civil and criminal Courts. I am an officer of the Senior Courts of England and Wales.

The other titles I hold as Partner and head of Litigation at Darlingtons Solicitors LLP, or as a Board Member of the Association of Certified Fraud Examiners UK Chapter, or as an Associate Professor of Law at Brunel University, do not detract from the initial description of me.

My duty to my clients and the Court, and conflicts of interest that may arise or are likely to arise are set out in the Solicitors’ Regulation Authority, (‘SRA’), Code of Conduct, and my firm’s terms and conditions.

These duties to my clients are reinforced by my firm’s complaints procedure, my COLP (Compliance Officer for Legal Practice), my COFA (Compliance Officer of Finance and Administration), and failing this, the SRA.

My COLP and my COFA, the Courts, and the SRA reinforce these duties to the Court.

My charges and my costs are set out in my firm’s terms and conditions. I provide a service, and therefore there are implied terms as to the quality of service, fitness for purpose, and reasonableness of costs as set out in the Sale of Goods Act 1979 as amended.

My duties are broadly speaking as follows:

To act in the best interests of my client;

Not to mislead or deceive the Court;

Where do things go wrong between Solicitor and client?

My analysis of a case according to the facts and documents you provide are based on experience, knowledge of Judge’s perceptions of issues, case law, statutes, and interpretation of it. However, there is no certainty in the outcome of an application or of a trial itself. Lawyers can and should provide you with a costs and risks analysis at varying points during a case, dependent upon new facts being discovered, or documentation which is ‘at odds’ with my client’s case as presented to me, which dictates a new analysis of the case. Usually, at the point where documents are exchanged between the Parties, or at exchange of Witness Statements, further consideration and review must be made.

Typically at that point, a client is quick to recall how a case which looked good on the face of it when first presented, now looks less or more strong as the case may be. Again, a good Lawyer should point out that independently he/she should conduct the review objectively, and not in your favour just because you want it to be so.

Sometimes, an application is lost. Think of it as a battle, but not the overall war. Applications are won and lost. Sometimes there is a cost Order that you have to pay. Your expectations are that if you are right overall, you should not pay any costs. Costs Orders must be complied with, or else you will feel the wrath of the Courts.

No one likes paying legal costs. They are a necessary evil. The business of a Lawyer is to charge fees to make a living. These are generally based upon time. If you feel you need to speak to your Lawyer 20 times a day, expect to pay for those 20 calls at a minimum usual time of 1 unit = 6 minutes, so 20 calls would be a minimum of 2 hours of time.

If things do not go as quickly as the case you feel should go, there are a number of reasons for this: The other side may not have been ready and could have asked for extensions of time. Things like this happen. Not everyone is efficient. You may not have paid for the Lawyer to do the work, in which case the work will not have been done in time. Have you given full instructions? Sometimes a client does not give clear instructions, which causes delay. Courts? Sometimes a hearing is listed late because the Court does not have space or time to accommodate any sooner.

My conclusion is that it is your prerogative to be a LiP, but should always seek legal advice from someone independent of your case, even if it is to review and consider your case or to prepare your Court bundle and assist you with documents required by the Court.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Don’t Play Games in the Courts

There is a concept in law known as equity and the courts can sometimes use equitable principles of discretion to assist in civil cases. It is important to note that equity, which is a historical common law doctrine associated with fairness, does not apply to all cases, but for obvious reasons, it can be very helpful in a variety of civil law claims.

For a Judge to help out with a case by using equitable principles where available, it is common sense that he or she is only likely to do so where the person asking for it has played fair. In fact, there is a longstanding legal principle applying to equity, as follows :-

“he who comes to equity must have clean hands”

The inference from this is crystal clear.

A recent case clearly demonstrates how this works in practice.

In the Court of Appeal case of Jameer v Paratus AMC the case involved a mortgage possession action.

In summary, as is customary in these cases, the borrower was given every opportunity to try and avoid the property being repossessed by the mortgage lender. Over a period of several years, the case progressed to the point where a suspended possession order was made. This is in effect, the “last chance saloon”, an Order for possession is on record and the borrower needs to comply with payment terms or otherwise the lender can proceed without further court orders.

In this case, the borrower still was unable to comply and a possession warrant was ordered. The borrower then applied for this to be suspended on the basis that her financial situation was improving. The judge refused that application and the case ultimately reached the Court of appeal.

The issue in the Court of appeal was whether the lower Court should have exercised discretion in the borrower’s favour ? Her problem was that she claimed that her financial situation had improved but had failed to provide sufficient or accurate information to the court.

The point about this case is that the borrower had made obvious omissions in the documents she presented to the court and therefore was not entitled to any further discretionary help. In effect, she had not come to court “with clean hands”.

The upshot of this case is that it does not pay, whatever the underlying motives, to adopt a “cat and mouse approach” to court proceedings. This is a common situation in my experience and parties to litigation should remember that equity is often an important shield against an adverse ruling, so it makes sense to be completely open and honest with the court at all times.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Fraud: A Criminal Claim brought by the CPS or by Private Prosecution?

You may or may not know this but currently, resources are limited by Government cuts, and Home Office budget restraints as to what statistically must be fulfilled by respective Police forces to receive further funding, to fight crime.

There has been stiff criticism and an inference of constitutional corruption whereby some crimes are favoured above others to satisfy Home Office statistics.

On many occasions, those who approach me for legal advice, have been rejected by the Police, following complaint, for one or more of the reasons set out below:

1. The Police lack resources to deal with such economic crime;
2. This is a Civil matter, and not in the public interest to pursue;
3. There is insufficient evidence to secure a conviction to a criminal standard;
4. The Police force who received complaint, do not have an economic crime team, or fraud team;
5. The Police Officer found the facts too complicated, and shelved the complaint hoping the victim would go away.

The Lord Chief Justice of England and Wales recently commented in the Court of Appeal Criminal Division, as follows:

‘…there is an increase in private prosecutions at a time of retrenchment of state activity in many areas where the state had previously provided sufficient funds to enable state bodies to conduct such prosecutions…’. R (Virgin Media Limited v Munaf Ahmed Zinga [2014] EWCA Crim 52.

I do not seek to explain in any great detail by way of this blog post, fundamental differences between Civil Law and Criminal Law procedure, or the Court systems, costs or timing. I have done that in other blog posts.

I intend by way of this blog post, merely to touch upon why the common law right to bring a private prosecution was correctly enshrined and retained under Section 6 of the Prosecution of Offences Act 1985 which states:

‘Prosecutions instituted and conducted otherwise than by the Service

(1) Subject to subsection (2) below, nothing in this Part shall preclude any person from instituting any criminal proceedings or conducting any criminal proceedings to which the Director’s duty to take over the conduct of proceedings does not apply.

(2) Where criminal proceedings are instituted in circumstances in which the Director is not under a duty to take over their conduct, he may nevertheless do so at any stage’.

Theoretical Instability:

What if resources fell so low, that the Police and other enforcement agencies were rendered ineffective to address economic crime, and so in terms of economic crime, an absence of Lawyers, and absence of Law enforcers, and a lack of Court resources to effectively manage such economic crime?

The likely answer is that crime increases because there is no deterrent, or prevention measures. Isn’t it easier for those criminally minded, to develop further ways to obtain money dishonestly, where there is no pressure to stop it? Does this not then breed further criminal schemes by others searching for the proverbial elusive buck?

It necessarily follows that there will be instability in society and criminal networks will increase in stability. New business structures will emerge based on corruption…Or has this been developing for years? We will all fall to the dark side.

The worst case scenario: A total breakdown of Governmental control, chaos and anarchy.

The Crown Prosecution Service: The CPS

I have heard from more cynical and successful Defence Barristers that CPS actually stands for: ‘Couldn’t Prosecute Satan’.

I disagree. There is nothing wrong with the Crown Prosecution Service per se, but there is a major problem with the resources they have to determine and manage cases.

It is true that sometimes the Police do not present the evidence properly because of a poor investigation. In almost all cases where I have acted for the Defendant, this has not been the case at all, but rather, the Police are let down because of poor preparation by the CPS because they are over-burdened with hundreds of cases.

Anyone who goes to a Magistrates’ Court will plainly see an Advocate for the CPS generally looking flustered, with a huge case-load of cases to be heard, being harassed by Defence lawyers trying to cut deals, seek adjournments, challenge evidence, seek applications for no case to answer.

So?

With the current state of our economy as it is, it is time to reflect upon the previous words of Lord Bingham in Jones v Whalley [2007] 1 AC 63, where he said: ‘A crime is an offence against the good order of the state. It is for the state by its appropriate agencies to investigate the alleged crimes and decide whether offenders should be prosecuted. In times past, with no public prosecution service and ill-organised means of enforcing law, the prosecution of offenders necessarily depended on the involvement of private individuals, but that is no longer so. The surviving right of private prosecution is of questionable value, and can be exercised in a way damaging to the public interest’.

The Lord Chief Justice, citing Lord Bingham’s views, further commented in R (Virgin Media Limited) v Munaf Ahmed Zinga [2014] EWCA Crim 52 ‘…as Parliament has authorised the bringing of such prosecutions, we do not consider it desirable to add to the debate. It is evident that private prosecutions by charitable or public interest bodies such as the RSPCA are common. Furthermore public bodies such as the Financial Services Authority also rely for their authority to prosecute on the general power of a private individual to prosecute…It is now also evident that commercial organisations regularly undertake private prosecutions….’

A Private Prosecution:

Having established therefore the previous common law right to bring a private prosecution, further considered recently by the Lord Chief Justice of England and Wales, the next hurdle for a private prosecutor is an immediate back-lash firstly from the proposed Defendant or their legal team, that a case of fraud could be brought in the Civil Courts as well as the Criminal Courts, and that the Civil Courts are more appropriate.

The second hurdle, having overcome the evidential and public interest tests as prescribed by CPS guidance notes before bringing criminal proceedings, is to convince the Court not only of your intentions as Prosecutor, but also that the case has been brought responsibly, and not frivolously, or is a vexatious claim.

The purpose of the Criminal Courts, are not to be used to blackmail a Defendant, or to seek vengeance or revenge. If you are bringing a claim in any Court, that must NEVER be an underlying factor, or else you will find yourself looking at a claim for malicious prosecution, interference with business, defamation, amongst other recourses for bringing criminal proceedings without merit to a criminal standard.

Why opt for Criminal Courts instead of Civil Courts?

The matter was considered briefly in William Geldart, Introduction to English Law 146 (D.C.M. Yardley ed., 9th ed. 1984),

“The difference between civil law and criminal law turns on the difference between two different objects which law seeks to pursue – redress or punishment. The object of civil law is the redress of wrongs by compelling compensation or restitution: the wrongdoer is not punished; he only suffers so much harm as is necessary to make good the wrong he has done. The person who has suffered gets a definite benefit from the law, or at least he avoids a loss. On the other hand, in the case of crimes, the main object of the law is to punish the wrongdoer; to give him and others a strong inducement not to commit same or similar crimes, to reform him if possible and perhaps to satisfy the public sense that wrongdoing ought to meet with retribution.”

The purpose therefore of bringing criminal proceedings rather than civil proceedings are to maintain stability of the Government, and social stability, by punishing offenders and deterring them, and others from offending.

Following natural Laws of Justice, Justice must be seen to be done.

Let’s face it, there are just too many instances of cases where there was criminal wrongdoing, but nothing was done about it for any number of reasons as set out at the beginning of this blog post, amongst others.

Bringing a private prosecution should not be about seeking damages, but above all, to uphold the Law of the land, and to prevent the baddies from getting away with it, and to prevent others thinking about baddies from doing anything naughty.

Conclusion:

In conclusion, a private prosecution should be considered most carefully before being pursued. One can not go too far wrong if you adopt the CPS guidelines .

Bringing a private prosecution should be first and foremost to punish those who have committed a criminal offence/s, and not to gain a financial advantage or use those proceedings as a bargaining chip.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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Advocacy

Yesterday, I delivered my keynote speech to law students at Brunel University, prior to running my Advocacy course this term. Here are some of the more salient points, I felt I should share, in terms of presentation, attitude, and delivery.

Adversarial advocacy is a polite contest between two sparring advocates seeking to persuade a Judge to prefer their argument, to that of their opponent.

You win by presenting a perceptively persuasive, and irresistible argument within the rules by not misleading the court, not losing your temper, and keeping a cool head, despite a Judge's questioning, berating, or anything else going on in a court at the time.

Understand and hone your skills of perspicacity: an ability to understand things quickly and make accurate judgments, especially in relation to the attitude and perceptions of the usher, the clerk, your opponent, your client, and the Judge. All of these people are linked. If you are excitable and arrogant outside of the doors of the court, it is gossip for the usher who tells the clerk, who tells the Judge, so be polite and respectful of everyone in the process. There is no need to ever be rude to court staff. Conversely, shmoozing has its place at appropriate times, but being a sycophant only seeks to annoy.

Watch the Judge's pen. Attune the speed of your delivery so that notes can be taken, and good points are not missed. A Judge asleep is a bad thing...A Judge who stops writing is a bad thing. A Judge who looks at the ceiling is not a good thing. A Judge who stares intensely at you is not a good thing.

Get into a rhythm when advocating. Try to deliver your points in threes. Stories naturally have a beginning, a middle, and an end. What is easy on the ear, is an argument that is put simply and unequivocally, and brings with it a sense of logic. Delivery having regard to the tone, and pitch of your voice, with adequate pauses, makes for receptive listening.

Be aware of your poise. Don't be a diva. Be humble, yet firm. Confident, but not arrogant. Be respectful, cool, calm, and collected. No over-dramatics. Don't become too emotional. Don't be intense. Rather, be measured in the presentation of your delivery. No hands in pockets; no fidgeting, no playing with your phones, no twirling of pens. All sound and movement can be seen from a higher vantage point where Judges usually sit, and it detracts from what you seek to say and is an unwanted and unnecessary disruption. The apparent ultimate standing angle in which one is likely to be most persuasive is 84.5 degrees. Good luck with that.

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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The McKenzie Friend’s enemy?

If the enemy of my enemy is my friend, and by that logic, my friend’s enemy is my enemy, what does this have to do with McKenzie friends?

Pause before you conjure up and pretend to give some semblance of an intelligent answer, or nod with a knowing, deep, and meaningful expression on your face, hiding the reality that you have no idea, or care particularly.

The original McKenzie friend was Ian Hanger, (later made Queen’s Counsel, and now a mediator in Queensland, Australia) in the case of McKenzie v McKenzie [1970] 3 ALL ER  1034, CA. Mr McKenzie was legally aided, but then legal aid was withdrawn. He could not afford legal representation, but Mr Hanger was prepared to go to court as a professional friend of McKenzie: A McKenzie Friend, to sit behind him, suggest advice based on procedure and the law, and to assist generally. The Judge at first instance would not allow this on day one of the trial, and so on day two, there was little point in Mr Hangar being at court.

Mr McKenzie appealed the decision on the basis that he had been denied legal representation. The Court of Appeal agreed and the matter was re-tried.

Thus sprang the principle that a McKenzie friend is someone who can assist a litigant-in-person in court with paperwork, court procedure, and assistance generally.

The difference with Ian Hanger was that as an officer of the court, he had a duty to the court not to mislead, and not to misrepresent the facts. He was regulated by his professional body, albeit not the Courts of England and Wales, but rather, the Australian courts.

A number of cases have recently arisen where McKenzie friends have over-stepped what is expected of them. Indeed, there is a notional understanding of the role of a McKenzie friend, but nothing in stone. Assisting a litigant-in-person can be done in many ways, and the role is not clearly defined.

This blogpost does not seek to question whether a McKenzie friend still has a place in court. The writer believes overwhelmingly that McKenzie friends are a huge help not only to the courts but to the litigant-in-person employing them, and the process generally….PROVIDED THAT THEY ARE LICENSED AND REGULATED AND KNOW WHAT THEY ARE DOING, AND THAT THEIR ASSISTANCE PRESUMES THEY ARE CONVERSANT IN LEGAL PROCEDURE AND PRESENTATION.

Indeed, where legal aid is dwindling, and legal representation cannot be afforded, (and in some occasions, not trusted), and conditional fees are not working or not permitted, someone to assist in court is a big comfort.

There are of course a number of groups who provide assistance as to court preparation such as Help4Lips, Citizens’ Advice Bureau, LawWorks, and the Bar Pro Bono Unit.

There are other groups who will help emotionally and with practical advice, but not legal advice, such as the Personal Support Unit.

Going back to the main question, what duty does a McKenzie friend have to you, the litigant-in-person?

Does the McKenzie friend derive a benefit for money or money’s worth? Is there a written or implied agreement in place which establishes a contract? If yes, the relationship may be contractual. If so, bad or misleading advice could be negligent advice.

What if there is no contract but you rely upon the McKenzie friend as a skilled person with expert advice in the field of legal procedure? There may be a relationship established in Tort which gives rise to negligent advice.

Ok. So you may have a remedy for negligence in cotract or tort, and the McKenzie friend gives you the wrong advice which leads to a claim arising against the McKenzie friend: Not so much a friend anymore…

Is there a distinction between a McKenzie friend who charges a fee, and a McKenzie friend who charges no fee?

There is a growing surge of professional McKenzie friends who charge a fee.

Well, herein lies the problem. McKenzie friends are not regulated. Their duty to the court is not regulated by any professional body. They have no codes of conduct to adhere to. They do not carry any indemnity insurance to cover them for any negligent acts/omissions, or advice. Yet, they can appear to assist litigants-in-person, and at the discretion of the court they can speak on their behalf.

What do you get with a professional McKenzie friend, that you do not get with a solicitor?

It may be cheaper by way of an hourly or fixed rate, but what if things go wrong? A solicitor is regulated by the Solicitors’ Regulation Authority. A solicitor abides by codes of conduct, and has duties to the court as officers of the courts not to mislead or misrepresent a case. Duties of confidentiality to their client.  A solicitor must have indemnity insurance. Costs and estimates must be regularly given and revised. Complaints procedures are ingrained into their terms and conditions. They are liable to you both in contract and in tort. Other regulatory breaches result in discipline, fines, and ultimately being struck off the roll of Solicitors.

A recent publication suggests that litigants in person should be given special treatment to a lawyer in court. That makes perfect sense. The profession of a litigant in person is not usually that of a lawyer. They do not know the rules and regulations and yet they are expected to know how to present an argument, and how to present paperwork.

The writer’s view is that a McKenzie friend, and especially a professional one, should be licensed. They should be regulated. There should be a code of conduct. There should be a separate qualification to obtain, which limits their assistance to procedure and presentation, rather than to provide legal advice. There ought to be a complaints procedure, and a disciplinary body. Only those fit to practice, honest, and of good character should be permitted to hold such a license.

I very much hope that such regulations and better judicial guidance will be forthcoming following the various consultations most notably the Legal Services Consumer Panel Report, Fee-charging McKenzie Friends (April 2014).

Regulation, education, and licenses are needed to ensure a good standard of McKenzie friend. Sociopaths, psychopaths, manipulators and con-artists, seeking to manipulate volatile and vulnerable litigants-in-person in stressful situations, some of which I have had the displeasure to come across when in Court, hiding behind the mask of a McKenzie Friend, need not apply. This should not extend to provision of legal advice. That is a regulated activity and if you wish to give legal advice, and advocate in court, then become a solicitor, a barrister, or a legal executive.

The McKenzie Friend’s enemy is not the court. It is not the litigant-in-person. It should not be a regulatory body, or lawyers on the opposing side. Indeed, the McKenzie friend should have no enemies.  Provided they adopt the appropriate balance to assist both the courts and the litigant-in-person, McKenzie friends should be considered assets and not liabilities. (licensed and regulated ones conforming to a code of conduct and carrying indemnity insurance).

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

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Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.

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