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Litigants in person, McKenzie Friends and reform

Over the last 15 years there has been a growth in the number of individuals acting in civil proceedings as litigants in person (LiP). There are a range of factors underlying this, including the rising cost of accessing legal services, the increase in the small claims limit and the dramatic reduction in legal aid effected by the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012.

The June 2015 publication, “Litigants in person: guidelines for lawyers”, produced by the Law Society, Chartered Institute of Legal Executives (CILEx) and the Bar Council, suggests that:

“… there is no single type of LiP and that LiPs should not be seen stereotypically as ‘a problem’”.

Laudable words, but there can be little doubt that the court process was not designed to accommodate widespread self-representation and the disadvantages for all participants in the process are manifest. Particular issues include:

  • Statements of case and witness statements that do not identify or focus upon the real issues that will determine the dispute (although the cynic may point out that such documents drafted by lawyers are not immune from the same criticism).
  • Difficulties in understanding the scope and extent of the obligations of disclosure.
  • The difficulty for a LiP in conducting the trial process, and in particular conducting cross-examination, giving evidence in “re-examination” and generally in presenting potentially complex factual and legal material.
  • How far the judge should descend into the arena and assist the LiP. The relatively new Civil Procedure Rule (CPR) 3.1A(5) indicates that the court may go as far as to put to witnesses, or cause to be put to witnesses, “such questions as may appear to the court to be proper”. However, it is unlikely that a trial judge would conduct a vigorous cross-examination in the same manner as a fully prepared advocate, lest they be perceived to have taken sides.
  • The extent to which the opposing advocate should assist the court and the LiP, bearing in mind their duty to their own client. The guidelines make clear that, subject to the paramount duty to the court, the advocate must act in the best interests of their client. The duty therefore does not extend to drawing the court’s attention to evidence favourable to the other side(Khudados v Hayden at paragraph 38).

With the growth in LiPs and consequent issues has come an allied rise in those attempting to assist LiP, generally referred to as McKenzie Friends. Important guidance is currently to be found in the Practice Guidance (McKenzie Friends: Civil and Family Courts) [2010] 1 WLR 1881. In short, there are presumptions, firstly that LiPs have a right to “reasonable assistance” from McKenzie Friends, but secondly that McKenzie Friends will not be permitted to exercise a right of audience or a right to conduct litigation. Such rights will be granted only “in exceptional circumstances” (paragraph 23), and indeed, paragraph 2.4.1 of the Queen’s Bench Guide says that they will be granted only “in very exceptional circumstances”.

This reflects the fact that such activities are “reserved legal activities” under the Legal Services Act 2007 and should, in the interests of the proper administration of justice, generally be exercised only by those who are properly qualified and authorised. This is particularly important given the growth of “professional” McKenzie Friends. The value of such services to vulnerable litigants is a matter of serious concern, particularly as such persons:

  • Are not subject to professional regulation.
  • Are unlikely to be insured.
  • Owe no duty to the court.
  • May not be bound by legal professional privilege.

In the recent case of Ravenscroft v Canal & River Trust, Master Marsh gave permission, unusually, for a McKenzie Friend to provide assistance and exercise a right of audience on behalf of a LiP in a complex case concerning the meaning of the British Waterways Act 1971. The Master did so primarily because:

  • The LiP was nearly illiterate.
  • He would have very real difficulty in presenting his case at trial.
  • There would otherwise be an inequality of arms.

The grant of permission to exercise the right of audience was clearly close to the line. The McKenzie Friend was interested in and very knowledgeable about “boaters rights”, but crucially had not “become a professional McKenzie Friend”. If he had been seeking to charge for his services then it seems unlikely that permission would have been granted, for this would effectively have subverted the will of Parliament. But then how would the litigant have presented his case? Possibly with the assistance of pro bono qualified representation, but of this there was no guarantee.

Against this background, there is a need for reform. Two matters are of particular note. First, the terms of Briggs LJ’s Civil Courts Structure Review final report means that we are likely to see the introduction of an online court for disputes up to £25,000. Whilst not without risks, it is hard to argue that it does not represent a much cheaper and fairer means of litigants (who cannot afford lawyers) prosecuting and presenting their cases as compared to the current system. Second, we await the report of the Judicial Executive Board following its consultation on reforming the courts’ approach to McKenzie Friends. There is a real possibility of the guidance being updated and incorporated into the CPR to promote awareness, clarity and uniformity of application. But it cannot resolve the fundamental tension between the need for proper regulation of the provision of legal services and for LiPs to obtain effective representation at court.

 

St Philips Stone Chambers James Morgan

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