A friend in need – how to manage litigants in person and McKenzie Friends

Shield iStock 000011120684XSmall 146x219Sarah Mumford provides some top tips on how to manage a claim brought by an LIP and how to handle communication with someone acting as the LIP’s lay adviser or “McKenzie Friend”.

There is a steady increase in those choosing to represent themselves rather than instruct a solicitor, possibly as a result of the recession, government cuts to access to legal aid in civil matters and the abolition of Conditional Fee Agreements. For any local authority, the experience of dealing with a litigant in person (LIP) with little or no grasp of the legal system is time consuming, expensive and often frustrating.

Managing an LIP’s expectations can be tricky and at times may feel like a full-time job. The courts are rightly concerned to ensure that LIPs have, and are seen to have, access to justice. As a result judges are generally sympathetic to LIPs and often view the defendant’s solicitors as having a role that can be difficult to reconcile with their duties to their own client, ensuring the LIP understands the litigation process and are not prejudiced by lack of resources.

Complaints procedures

Hopefully, there will have been correspondence and communication with the LIP before proceedings are issued. As soon as a complaint is made, you should refer the person to your authority’s complaints procedure and advise them of their right to refer the issue to the Local Government Ombudsman.

If, having exhausted the complaints process, the LIP is still determined to pursue the matter through the courts, then there are certain actions that you should take to ensure that you are seen to have acted fairly towards the LIP.

Checklist on receipt of proceedings

  • It can feel as though you are doing the LIP’s job for them, but write to the LIP as soon as possible setting out the legal process and the possible costs consequences if they fail to comply with a court order or if their claim fails. A judge will be far more sympathetic towards you if you can demonstrate that you have not tried to gain any unfair advantage over the LIP.
  • Always advise the LIP to obtain legal advice. Free legal advice is available from the Litigants in Person Service, the Personal Support Unit and Citizens’ Advice Bureaux. Most claimant lawyers provide a free session to assess whether a claim has merit and discuss funding options. This invitation may be taken as a slight by the LIP but it is something that the court will expect to see, particularly if considering a strike-out or costs application.
  • Check that the LIP’s contact details (including home address, email and telephone number) are correct to ensure all correspondence and documents you send are received. Remember that if documents need to be served by a deadline, the luxury of service by fax (or email) may not be available so do not leave this until the last minute.
  • Was the application issued within the limitation period? For judicial review proceedings, this is very short – three months from the date of the decision. While the courts can order an extension of the time limit, they are often reluctant to do so unless there is very good reason for the delay. Applications issued outside of the limitation period are statute barred.

Resolving the claim

DO:

  • Treat the LIP with courtesy and sensitivity throughout the litigation process.
  • Take the claim seriously and investigate each allegation as you would with a represented party.
  • Take time to explain to the LIP each step of the litigation process. Send the LIP copy Orders in case the court fails to serve them, along with copies of the relevant CPR sections they need to comply with in advance. The court expects a represented party to assist a LIP. If the LIP understands the litigation process it will make your life easier or in difficult cases at least the LIP will not be able to rely on ignorance of the rules.
  • Forewarn the LIP if you intend to seek costs incurred during litigation. Point out that the Authority must at all times have regard to the public purse and reclaim costs in appropriate cases (but see the comment below regarding making threats).
  • Obtain expert evidence promptly. Consider early service of evidence – it may help the LIP understand your case and manage expectations.
  • Try to help the courts as much as possible by providing as much information as possible and filing any documentation which the LIP has failed to file. The courts will make a costs order against an LIP, but to get a costs order you need to demonstrate that you have made every effort to resolve the proceedings and have carefully explained the process and costs consequences to the LIP.
  • Consider settlement as soon as possible if the claim is meritorious. You may have to encourage the LIP to take legal advice again at this stage.
  • Apply for summary judgment if you have evidence that the claim has no real prospect of success or apply to strike out the claim if it is frivolous, vexatious or an abuse of process.
  • Be prepared to take technical points if there has been a procedural irregularity that is more than just a nuisance and ask for your costs to be summarily assessed. An unless order or an adverse costs order can be a useful tool to focus a LIP’s mind on the case.
  • Remember that a LIP may be entitled to recover costs for the work they have done in connection with the case, if successful.
  • Reserve the case to the same District Judge or Master. If a District Judge or Master has got to grips with the issue and dealt with the LIP robustly you can ask him or her to reserve it to the same District Judge or Master to avoid someone else having to start afresh at the next hearing.

DON’T

  • Assume that the LIP does not know what he/she is talking about.
  • Presume that the claim has no merit even if you have had experience of the LIP before.
  • Get involved in lengthy discussions, correspondence or disputes. Correspond with the LIP in writing if telephone calls are difficult but keep to the point. This avoids misunderstandings and provides evidence to the court that the authority is treating the applicant fairly and with consideration from the outset. However, there are vexatious LIPs who will argue the same issue indefinitely and at length. If you have answered the point already, and are sure, say so politely and do not go back there each time.
  • Use legal jargon. Make sure the LIP is clear about what is required from them and use lay terms.
  • Forget that that extra time and money is often required to manage claims with LIPs. The litigation process may be drawn out and more expensive than one may anticipate.
  • Make threats. There can be a fine line between explaining that a course of conduct is likely to lead to a costs order and giving the appearance that you are trying to use the LIP’s lack of legal or financial support unfairly.

McKenzie Friends

Often, an LIP turns to a friend or relative to assist them with their case; this assistance is usually informal and behind the scenes and of a ‘best friend’ nature. However, where the person assisting attends court and is more involved in the proceedings, that person is known as a McKenzie Friend. The Authority can then easily become embroiled in a protracted three-way correspondence.

Where this happens, you should write to that lay person setting out the limits on what they are able to do to assist the LIP, so that they understand their position. You should also strongly recommend that the LIP and the friend seek independent legal advice in relation to the contents of your letter.

Paragraph 2 of Practice Guidance: McKenzie Friends (Civil and Family Courts) 2010 enshrines the right to a McKenzie Friend: “Litigants have the right to have reasonable assistance from a lay person, sometimes called a McKenzie Friend.”

The Guidance also makes clear that where a party to proceedings is assisted by another lay person, they remain LIPs which means that they must have conduct of the litigation and not the McKenzie Friend, whose role is simply to assist the litigant in person. McKenzie Friends have no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation.

The role of the McKenzie Friend

The Guidance sets out what role the McKenzie Friend can and cannot play.

What McKenzie Friends may do:

  • provide moral support for litigants;
  • take notes;
  • help with case papers;
  • quietly give advice on any aspect of the conduct of the case.

What McKenzie Friends may not do:

  • act as the litigants’ agent in relation to the proceedings;
  • manage litigants’ cases outside court, for example by signing court documents; or
  • address the court, make oral submissions or examine witnesses.

If the McKenzie Friend requests that all correspondence should be sent to them as the LIP’s representative, you should explain why you cannot agree to this and refer them to the Guidance.

Criminal offences

A further issue is that the McKenzie Friend may inadvertently be committing a criminal offence. Only a regulated person (a lawyer) or an LIP can conduct proceedings. Paragraph 18 of the Guidance sets this out clearly: “McKenzie Friends do not have a right of audience or a right to conduct litigation. It is a criminal offence to exercise rights of audience or to conduct litigation unless properly qualified and authorised to do so by an appropriate regulatory body or, in the case of an otherwise unqualified or unauthorised individual (i.e., a lay individual including a McKenzie Friend), the court grants such rights on a case-by-case basis”.

Under the Legal Services Act 2007, it is an offence to carry on a “reserved legal activity” (such as conducting litigation) unless authorised to do so (or exempt). An “authorised person” is:

  • a person who is authorised to carry on the relevant activity by a relevant approved regulator in relation to the relevant activity (other than by virtue of a licence under Part 5), or
  • a licensable body which, by virtue of such a licence, is authorised to carry on the relevant activity by a licensing authority in relation to the reserved legal activity.

The penalties for breach of this are set out in s.14 of the Legal Services Act 2007 and include a fine and/or imprisonment.

So you should make it clear that you will not be responding to any future correspondence from the McKenzie Friend in relation to the LIP’s litigation, in order to ensure that the law isn’t broken. You should explain how you will only respond to correspondence received from the LIP relating to this claim and that correspondence from that McKenzie Friend or from any other McKenzie Friend will be ignored; nor should you engage in telephone conversations with the McKenzie Friend on this matter.

Finally, remember that LIPs are often suspicious, angry and very determined. Follow up any conversations in writing, summarising the conversation that you have had.

Sarah Mumford is Best Practice Partner and Director of Risk at Bevan Brittan. She can be contacted on 0870 194 1627 or by This email address is being protected from spambots. You need JavaScript enabled to view it..