Being a litigant in personLitigant in person(reproduced in full in appendix A)Litigant in person:overriding objective, andLitigant in personLitigant in person:legal advice, andLitigant in personPersonal Support UnitLitigant in person:Personal Support UnitLitigant in personMcKenzie friends:role ofMcKenzie friendsLitigant in personMcKenzie friends:role ofMcKenzie friends:Practice GuidanceMcKenzie friendsLitigant in personPractice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:paras 18–30Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 13Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 12Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 9Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 8Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 6Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 5Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 4Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 3Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas Wall:para 2Practice Guidance:McKenzie Friends (Civil and Family Courts) (July 2010) Lord Neuberger and Sir Nicholas WallMcKenzie friends:role ofMcKenzie friends:conflict of interest, andMcKenzie friendsLitigant in personMcKenzie friends:role ofMcKenzie friends:conflict of interest, andMcKenzie friendsLitigant in personMcKenzie friends:role ofMcKenzie friends:consultation into roleMcKenzie friendsLitigant in personMcKenzie friends:questions forMcKenzie friendsLitigant in person
6.5There is no compulsion to instruct a lawyer in court proceedings in England and Wales. A person appearing in court proceedings without a legal representative is known as a ‘litigant in person’ and has the right to address the court directly. The Case Management Pilot rules require the court to ‘have regard’ to the fact that at least one party is unrepresented in exercising its case management powers.
1COPR Pr3.2. This may include, for example, the judge finding out what questions a litigant in person may wish to put to a witness, and either putting them to the witness directly or causing the questions to be put.
2COPR Pr3.2.4. If there are, in fact, cases which fall outside the Case Management Pilot (as to which, see further paras 4.101–4.103), it is likely that the same approach will be applied in any such case in which a party is acting in person.
6.6Litigants in person have the same responsibilities to the court as represented parties to help the court further what is described as ‘the overriding objective’ (see further paras 10.7–10.11). This means dealing with the case justly, and at proportionate cost, having regard to the principles contained in the Mental Capacity Act (MCA) 2005.
3COPR Pr1.1.1, COPR r4. The reference to proportionate cost only applies in relation to cases falling within the Case Management Pilot, but the same approach is likely also to be applied if there are cases falling outside the Pilot. This includes complying with orders, keeping to timetables, being full and frank in their disclosure to the court and the parties. The Case Management Pilot imposes a specific duty on litigants in person to engage with the court process, to co-operate with the court and the parties, to present their case fairly and to seek early resolution of disputes where practicable.
4COPR Pr1.6. Parties who fail to comply with their duties risk being ordered to pay costs.
5COPR r4(3), COPR Pr1.4.3.6.7We suggest that it is wise for anyone involved in Court of Protection proceedings at least to consider the possibility of obtaining legal advice. Court of Protection judges will sometimes make a specific recommendation to a litigant in person that he or she should seek legal advice. This should be followed up where possible. Furthermore, legal advice is likely to be more effective if it is provided early on in the case, and obtaining legal advice at the outset may mean that it is possible to narrow the issues in the case so that either the case can be brought to a close more quickly, or a litigant in person may then be in a better position to deal with those remaining issues themselves.
6.8Sources of support available to litigants in person include the Personal Support Unit (PSU)
6www.thepsu.org/. which is an independent charity, staffed by volunteers. It operates in thirteen courts around England and Wales. Its aim is to help those facing civil proceedings unrepresented manage their cases better. PSU volunteers will not offer legal advice but can sometimes put litigants in touch with relevant agencies. PSU volunteers are able to offer practical support including guidance round the court building, help organising documentation and emotional support. Information about the PSU is prominently displayed in the courts where it operates.
6.9A ‘McKenzie friend’ is someone who provides reasonable assistance to a litigant in person. A McKenzie friend does not represent the litigant, but can sit beside them in court and ‘quietly assist’.
6.10In the light of an increase in the number of litigants in person, the Master of the Rolls and the President of the Family Division issued
Practice Guidance on McKenzie friends on 12 July 2010.
7Practice Guidance: McKenzie friends (Civil and Family Courts) (‘Practice Guidance’), 12 July 2010; available at: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Guidance/mckenzie-friends-practice-guidance-july-2010.pdf. This has been held to apply in the Court of Protection (
LBX v TT8[2014] EWCOP 24, [2014] COPLR 561.). The following points should be noted:
•A McKenzie friend can only act on behalf of a person with litigation capacity.
9This is not stated in the Practice Guidance, but it is suggested from the scope of the role of such a friend as an assistant to the litigant. •Litigants in person can receive reasonable assistance from a McKenzie friend, subject to the discretion of the court. The court may refuse to permit assistance by a McKenzie friend if satisfied that the interests of justice and fairness do not require it.
10Practice Guidance paras 2 and 5. •A litigant seeking assistance from a McKenzie friend should seek the court’s permission as soon as possible and the McKenzie friend should submit a short CV and confirm their independence of the case and their understanding of their duty of confidentiality.
11Practice Guidance para 6. •A McKenzie friend
may: provide moral support; take notes; help with case papers; quietly give advice on any aspect of the conduct of the case.
12Practice Guidance para 3. •A McKenzie friend may
not: act as agent; manage the case outside court; address the court; or make submissions.
13Practice Guidance para 4. •The right to a fair trial is engaged by the decision whether to permit a McKenzie friend, and the litigant should be given the chance to argue the point. Unless the proceedings are in private, the proposed McKenzie friend should be allowed in court to help the litigant. If the case is being heard in private, then it is for the litigant to justify the proposed McKenzie friend’s presence in court.
14Practice Guidance paras 8 and 9. •Refusal would not be justified simply because the case is straightforward, or because the proposed McKenzie friend belongs to an organisation that promotes a particular cause, or that the proceedings are confidential. Refusal could be justified if the assistance was for an improper purpose; or the McKenzie friend was using the litigant as a ‘puppet’, or does not appear to understand the duty of confidentiality.
15Practice Guidance paras 12 and 13. •Rarely courts may grant rights of audience, or the right to conduct litigation, to McKenzie friends.
16Practice Guidance paras 18–26. •Litigants may agree to pay fees to McKenzie friends for the provision of reasonable assistance, and these costs cannot be recovered from the opponent. If the court has granted the McKenzie friend the right to conduct litigation or a right of audience, then costs incurred in these activities are in principle recoverable from the litigant, and may be recoverable from the opponent as a disbursement.
17Practice Guidance paras 27–30. 6.11The role of the McKenzie friend in Court of Protection proceedings, and the risk of conflicts of interest, was considered in
HBCC v LG.
18[2010] EWHC 1527 (Fam). Eleanor King J had permitted P’s daughter to receive assistance from CP, a McKenzie friend who was also a local councillor. The judge described the positive contribution that McKenzie friends can make:
141. This court is always keen to welcome McKenzie friends; they give time and support of inestimable value to the litigant they have agreed to assist. McKenzie friend[s] come from all walks of life: often they are personal friends or connections of the litigant; sometimes they are ‘professional’ McKenzie friends. Sometimes, as here, they are respected members of the community who have been approached by a litigant for support and advice. Each has their place.
6.12The judge considered that C had exceeded his role as McKenzie friend, not in his conduct during the trial itself, but in his behaviour outside court which she described as inflammatory, including his ‘dogged maintenance of his stated position’ in correspondence which had gone beyond what was proper. She commented that
147…. I understand that democratically elected representatives be they Members of Parliament or local Councillors will often, appropriately, take up issues on behalf of their constituents. It follows that any elected representative must be cautious that in doing so they do not find themselves in conflict with their role as a McKenzie friend.
6.13At the time of writing a consultation into the role of McKenzie friends has recently concluded. The consultation sought views on a number of matters, including as to whether the term should be replaced, whether the guidance should be replaced by rules, the possible use of a code of conduct and fee recovery.
19Judicial Executive Board Working Group: Reforming the courts’ approach to McKenzie friends: a consultation (closed 9 June 2016). Whilst the consultation is not specific to the Court of Protection, it is likely that any changes in practice and procedure that are introduced will either apply directly in the court, or be mirrored by equivalent provisions
6.14It may be useful to ask the following questions to anyone offering services as a McKenzie friend:
•How are charges worked out, and what is the likely cost of support for the case in question?
•What is the professional background of the proposed McKenzie friend? They may be able to provide a CV.
•What experience does the McKenzie friend have? Are they able to supply references?
•Does the McKenzie friend hold a particular view about the issues involved in the case – for example, are they involved in relevant campaigns? This does not mean that they cannot act as McKenzie friend; but it may have a bearing on the advice they provide.