An Introduction to Advocacy - Coram Chambers€¦ · INTRODUCTION TO ADVOCACY Lucinda Wicks and Sarah Tyler 26 September 2013 OUTLINE At Court The Importance of Orders The Golden

An Introduction to Advocacy

Lucinda Wicks & Sarah Tyler

Coram Chambers

26.09.13

About the presenters

Lucinda Wicks Lucinda joined Coram Chambers as a pupil in 2008; following which she was invited to join Chambers as a tenant in 2009.

Prior to commencing her pupillage with Coram, Lucinda had direct exposure to Child Law work though her role as a paralegal for the head of the Children’s department at Fisher Meredith Solicitors LLP. In that role, Lucinda worked directly with clients and attended court on a regular basis providing her with the opportunity to gain a detailed insight into the complexities of working within Family Law.

Lucinda has also worked within the Probation Service during which time she was directly involved with offenders of all backgrounds; including those convicted of extreme violence towards others and those who offending was linked to long – term drug and/or alcohol issues or their mental health. As a result, Lucinda is skilled at representing those who have a complex, and potentially prejudicial, history of offending within the Family Law arena.

Lucinda has also been a volunteer with the Personal Support Unit assisting Self – Represented Litigants in the Royal Courts of Justice and the Principal Registry of the Family Division. This has contributed to Lucinda’s particular skill in working with vulnerable clients whose personal circumstances are such that they require a more attuned and compassionate approach from their representative.

As a member of Coram Lucinda continues to represent all manner of clients including Local Authorities, parents, Children’s Guardians and Grandparents in cases which cover all manner of issues including sexual abuse, Domestic Violence, non accidental injuries to a child and Residence.

Sarah Tyler Sarah completed her pupillage at Coram under the supervision of Anne Spratling, Michael Horton and Kate Hudson.

Sarah’s practice encompasses all areas of family law, with a particular focus on cases concerning family finance and relationship breakdown, private law children and public law children.

In family finance cases Sarah represents and advises clients in matters involving marital or civil partnership breakdown and claims brought under Schedule 1 to the Children Act 1989. She also advises and acts in claims brought under the Trusts of Land and Appointment of Trustees Act 1996.

Sarah acts in both public law cases, representing local authorities, parents, grandparents, NYAS caseworkers and guardians on a regular basis. Sarah has experience of cases requiring particular sensitivity, including those involving sexual abuse, non-accidental injury, domestic violence, severe neglect and substance abuse. Sarah has also acted in cases involving particular issues of disclosure.

In private children law, Sarah has expertise in cases involving international and national relocation cases, as well as those involving intractable contact and residence disputes.

Sarah always strives to provide a robust yet approachable service to clients, and is known for taking a pragmatic approach.

Prior to practicing at the Bar, Sarah worked in politics and as a paralegal in the family department at Farrer & Co LLP where she worked on a number of high profile cases, and gained invaluable experience of the needs of her professional clients.

27/09/2013

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INTRODUCTION TO ADVOCACYINTRODUCTION TO ADVOCACY

Lucinda Wicks and Sarah Tyler26 September 2013

Lucinda Wicks and Sarah Tyler26 September 2013

OUTLINE

At Court

The Importance of Orders

The Golden Rules of Advocacy

What NOT to do or wear

Current issues

Questions

AT COURT

FLA 1996 and Children Act 1989

District Judge of the Day and issuing

On Notice hearings

Bundles - see PD27A

Documents

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DOCUMENTS

See PD27A

File the document before the morning of the hearing

Start with a summary of your client’s case

End with your conclusion or conclusions

Avoid too much narrative or too much case law

Use font size 12 - 1.5 line spaced - spaces between paragraphs and simple paragraph numbers

ORDERS

Drafting orders can be time consuming and complicated - give it your full attention. List in advance all matters you need addressed

Orders must be in clear, precise and accurate terms

Deal with any slipped timetabling or previous orders that have not been complied with

Recitals - use as part of your advocacy

Don’t be afraid to ask the Judge for reasons

THE RULES OF ADVOCACYWITH THANKS TO KEITH EVANS - “THE GOLDEN RULES

OF ADVOCACY”

1. The Advocate must not express his or her opinion in Court

2. Never give - or appear to give - evidence yourself

3. In your closing submissions speak only of matters which have been raised in evidence

4. Make absolutely sure you have ‘put your case’ to the opposing witness

5. Do not argue with the witnesses

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THE RULES (2)

6. Never refer to any previous offers of settlement or a defendant’s criminal convictions (as adapted for family cases)

7. Don’t ask leading questions

THE RULES (3)

8. Commit to the theatre of the Courtroom. Don’t do it by halves.

• Real advocacy “its the most demanding kind of lawyering there is. It takes courage, it takes imagination and it takes the ability to get up and keep going when your mouth goes dry and you want to burst into tears. And all without showing it - all, incidentally, without letting it break your heart and your spirit”

THE RULES (4)

9. Entertain your audience and tell them a story

10.A beginning, a middle and an end

11.Maintain your continuity

12.Keep it simple - detail is dangerous

13.Be brief and ask short questions

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THE RULES (5)

15.Know your audibility

16.Vary your pace and your tone

17.Be aware of timing and the power of the pause

18.Be very careful about raising your voice

19.Only repeat yourself for emphasis

20.And....listen to the Judge

CURRENT ISSUES: LITIGANTS IN PERSON

See - The Judicial Working Group on Litigants in Person: Report - July 2013

See - Law Society - Litigants in Person dated 19 April 2012

Your duties to act in the best interest of your client and your duty to the Court remain paramount.

There are however specific considerations when dealing with LiPs

LITIGANTS IN PERSON

You should not take ‘unfair advantage’ of an opposing party’s lack of legal knowledge nor should you use professional status or qualifications to take ‘unfair advantage’ of another individual to advance your client’s interests. (SRA Handbook Ch 11)

Taking ‘unfair advantage’ is any behaviour any reasonable solicitor would regard as wrong and improper:

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LITIGANTS IN PERSON

Bullying and unjustifiable threats;

misleading or deceitful behaviour

claiming what cannot be properly claimed

demanding what cannot properly be demanded

Using law and procedure effective against your opponent would not in itself be taking ‘unfair advantage’

Correspondence with LiPs should always be professional, respectful, relevant, measured and calm.

LIPS - WHAT THE COURT EXPECTS

The Court might expect you to:

Prepare all necessary bundles of documents and provide them to the Court AND provide to the LiP at the same time

Provide written arguments and documents to the court and LiP in good time before a hearing

Where necessary, promptly deal with the order

LITIGANTS IN PERSON: COMMON PROBLEMS

Refusal to negotiate at Court

Failure to understand the documents or the proceedings

Complaints

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MCKENZIE FRIENDS & PERSONAL SUPPORT UNIT

Practice Guidance 12 July 2010 - McKenzie Friends (Civil and Family Courts)[2010] 2 FLR 962

PSU

Dos and Don’ts

Presentation: Look smart

Preparation: Know your case

Persuasion

Professional: Don’t call the Judge by the wrong title

Polite: Don’t keep the Judge waiting - and listen!

QUESTIONS

???

9/26/13 PRACTICE DIRECTION 27A - FAMILY PROCEEDINGS : COURT BUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN ALL COURTS OTH…

www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27a 1/8

See also Part 27, Practice Direction 27B, Practice Direction 27C

PRACTICE DIRECTION 27A – FAMILY PROCEEDINGS : COURTBUNDLES (UNIVERSAL PRACTICE TO BE APPLIED IN ALL COURTSOTHER THAN THE FAMILY PROCEEDINGS COURT)Contents of this Practice Direction

Title NumberApplication of the practice direction Para. 2.1

Responsibility for the preparation of the bundle Para. 3.1

Contents of the bundle Para. 4.1

Format of the bundle Para. 5.1

Timetable for preparing and lodging the bundle Para. 6.1

Lodging the bundle Para. 7.1

Lodging the bundle – additional requirements forcases being heard at First Avenue House or at theRCJ

Para. 8.1

Removing and relodging the bundle Para. 9.1

Time estimates Para. 10.1

Taking cases out of the list Para. 11.1

Penalties for failure to comply with the practicedirection

Para. 12.1

Commencement of the practice direction andapplication of other practice directions

Para. 13.1

1.1The President of the Family Division has issued this practice direction to achieve consistency across the country in allfamily courts (other than the Family Proceedings Court) in the preparation of court bundles and in respect of other relatedmatters.

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Application of the practice direction

PRACTICE DIRECTION 27A – FAMILY PROCEEDINGS :COURT BUNDLES (UNIVERSAL PRACTICE TO BEAPPLIED IN ALL COURTS OTHER THAN THE FAMILYPROCEEDINGS COURT)

http://www.justice.gov.uk/courts/procedure-rules/family/parts/part_27

http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27b

http://www.justice.gov.uk/courts/procedure-rules/family/practice_directions/pd_part_27c



2.1

Except as specified in paragraph 2.4, and subject to specific directions given in any particular case, the following practiceapplies to –

(a) all hearings of whatever nature (including but not limited to hearings in family proceedings, CPR Part 7 and Part 8claims and appeals) before a judge of the Family Division of the High Court wherever the court may be sitting;

(b) all hearings in family proceedings in the Royal Courts of Justice (‘RCJ’);

(c) all hearings in the Principal Registry of the Family Division (‘PRFD’) at First Avenue House; and

(d) all hearings in family proceedings in all other courts except for Family Proceedings Courts.

2.2

‘Hearings’ includes all appearances before a judge or district judge, whether with or without notice to other parties andwhether for directions or for substantive relief.

2.3

This practice direction applies whether a bundle is being lodged for the first time or is being relodged for a further hearing(see paragraph 9.2).

2.4

This practice direction does not apply to –

(a) cases listed for one hour or less at a court referred to in paragraph 2.1(c) or 2.1(d); or

(b) the hearing of any urgent application if and to the extent that it is impossible to comply with it.

2.5

The Designated Family Judge responsible for any court referred to in paragraph 2.1(c) or 2.1(d) may, after suchconsultation as is appropriate (but in the case of hearings in the PRFD at First Avenue House only with the agreement ofthe Senior District Judge), direct that in that court this practice direction shall apply to all family proceedings irrespective ofthe length of hearing.

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Responsibility for the preparation of the bundle3.1

A bundle for the use of the court at the hearing shall be provided by the party in the position of applicant at the hearing (or,if there are crossapplications, by the party whose application was first in time) or, if that person is a litigant in person, bythe first listed respondent who is not a litigant in person.

3.2

The party preparing the bundle shall paginate it. If possible the contents of the bundle shall be agreed by all parties.

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Contents of the bundle4.1

The bundle shall contain copies of all documents relevant to the hearing, in chronological order from the front of thebundle, paginated and indexed, and divided into separate sections (each section being separately paginated) as follows –

(a) preliminary documents (see paragraph 4.2) and any other case management documents required by any other practicedirection;

(b) applications and orders;

(c) statements and affidavits (which must be dated in the top right corner of the front page);

(d) care plans (where appropriate);

(e) experts' reports and other reports (including those of a guardian, children’s guardian or litigation friend); and

(f) other documents, divided into further sections as may be appropriate.

Copies of notes of contact visits should normally not be included in the bundle unless directed by a judge.

4.2

At the commencement of the bundle there shall be inserted the following documents (‘the preliminary documents’) –

(i) an up to date summary of the background to the hearing confined to those matters which are relevant to the hearing andthe management of the case and limited, if practicable, to one A4 page;

(ii) a statement of the issue or issues to be determined (1) at that hearing and (2) at the final hearing;

(iii) a position statement by each party including a summary of the order or directions sought by that party (1) at thathearing and (2) at the final hearing;

(iv) an up to date chronology, if it is a final hearing or if the summary under (i) is insufficient;

(v) skeleton arguments, if appropriate, with copies of all authorities relied on; and

(vi) a list of essential reading for that hearing.

4.3

Each of the preliminary documents shall state on the front page immediately below the heading the date when it wasprepared and the date of the hearing for which it was prepared.

4.4

The summary of the background, statement of issues, chronology, position statement and any skeleton arguments shall becrossreferenced to the relevant pages of the bundle.

4.5

The summary of the background, statement of issues, chronology and reading list shall in the case of a final hearing, andshall so far as practicable in the case of any other hearing, each consist of a single document in a form agreed by all



parties. Where the parties disagree as to the content the fact of their disagreement and their differing contentions shall beset out at the appropriate places in the document.

4.6

Where the nature of the hearing is such that a complete bundle of all documents is unnecessary, the bundle (which neednot be repaginated) may comprise only those documents necessary for the hearing, but –

(i) the summary (paragraph 4.2(i)) must commence with a statement that the bundle is limited or incomplete; and

(ii) the bundle shall if reasonably practicable be in a form agreed by all parties.

4.7

Where the bundle is relodged in accordance with paragraph 9.2, before it is relodged –

(a) the bundle shall be updated as appropriate; and

(b) all superseded documents (and in particular all outdated summaries, statements of issues, chronologies, skeletonarguments and similar documents) shall be removed from the bundle.

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Format of the bundle5.1

The bundle shall be contained in one or more A4 size ring binders or lever arch files (each lever arch file being limited to350 pages).

5.2

All ring binders and lever arch files shall have clearly marked on the front and the spine –

(a) the title and number of the case;

(b) the court where the case has been listed;

(c) the hearing date and time;

(d) if known, the name of the judge hearing the case; and

(e) where there is more than one ring binder or lever arch file, a distinguishing letter (A, B, C etc).

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Timetable for preparing and lodging the bundle6.1

The party preparing the bundle shall, whether or not the bundle has been agreed, provide a paginated index to all otherparties not less than 4 working days before the hearing (in relation to a case management conference to which theprovisions of the Public Law Protocol [2003] 2 FLR 719 apply, not less than 5 working days before the case managementconference).

6.2



Where counsel is to be instructed at any hearing, a paginated bundle shall (if not already in counsel’s possession) bedelivered to counsel by the person instructing that counsel not less than 3 working days before the hearing.

6.3

The bundle (with the exception of the preliminary documents if and insofar as they are not then available) shall be lodgedwith the court not less than 2 working days before the hearing, or at such other time as may be specified by the judge.

6.4

The preliminary documents shall be lodged with the court no later than 11 am on the day before the hearing and, wherethe hearing is before a judge of the High Court and the name of the judge is known, shall at the same time be sent by email to the judge's clerk.

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Lodging the bundle7.1

The bundle shall be lodged at the appropriate office. If the bundle is lodged in the wrong place the judge may –

(a) treat the bundle as having not been lodged; and

(b) take the steps referred to in paragraph 12.

7.2

Unless the judge has given some other direction as to where the bundle in any particular case is to be lodged (for examplea direction that the bundle is to be lodged with the judge’s clerk) the bundle shall be lodged –

(a) for hearings in the RCJ, in the office of the Clerk of the Rules, 1st Mezzanine (Rm 1M), Queen's Building , Royal Courtsof Justice, Strand, London WC2A 2LL (DX 44450 Strand);

(b) for hearings in the PRFD at First Avenue House, at the List Office counter, 3rd floor, First Avenue House, 42/49 HighHolborn, London, WC1V 6NP (DX 396 Chancery Lane); and

(c) for hearings at any other court, at such place as may be designated by the Designated Family Judge or other judge atthat court and in default of any such designation at the court office of the court where the hearing is to take place.

7.3

Any bundle sent to the court by post, DX or courier shall be clearly addressed to the appropriate office and shall show thedate and place of the hearing on the outside of any packaging as well as on the bundle itself.

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Lodging the bundle – additional requirements for cases being heard at FirstAvenue House or at the RCJ8.1

In the case of hearings at the RCJ or First Avenue House, parties shall –

(a) if the bundle or preliminary documents are delivered personally, ensure that they obtain a receipt from the clerk



accepting it or them; and

(b) if the bundle or preliminary documents are sent by post or DX, ensure that they obtain proof of posting or despatch.

The receipt (or proof of posting or despatch, as the case may be) shall be brought to court on the day of the hearing andmust be produced to the court if requested. If the receipt (or proof of posting or despatch) cannot be produced to the courtthe judge may (i) treat the bundle as having not been lodged and (ii) take the steps referred to in paragraph 12.

8.2

For hearings at the RCJ –

(a) bundles or preliminary documents delivered after 11 am on the day before the hearing will not be accepted by the Clerkof the Rules and shall be delivered –

(i) in a case where the hearing is before a judge of the High Court, directly to the clerk of the judge hearing the case;

(ii) in a case where the hearing is before a Circuit Judge, Deputy High Court Judge or Recorder, directly to the messengerat the Judge's entrance to the Queen’s Building (with telephone notification to the personal assistant to the DesignatedFamily Judge, 020 7947 7155, that this has been done).

(b) upon learning before which judge a hearing is to take place, the clerk to counsel, or other advocate, representing theparty in the position of applicant shall no later than 3pm the day before the hearing –

(i) in a case where the hearing is before a judge of the High Court, telephone the clerk of the judge hearing the case;

(ii) in a case where the hearing is before a Circuit Judge, Deputy High Court Judge or Recorder, telephone the personalassistant to the Designated Family Judge;

to ascertain whether the judge has received the bundle (including the preliminary documents) and, if not, shall organiseprompt delivery by the applicant's solicitor.

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Removing and re-lodging the bundle9.1

Following completion of the hearing the party responsible for the bundle shall retrieve it from the court immediately or, ifthat is not practicable, shall collect it from the court within five working days. Bundles which are not collected in due timemay be destroyed.

9.2

The bundle shall be relodged for the next and any further hearings in accordance with the provisions of this practicedirection and in a form which complies with paragraph 4.7.

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Time estimates10.1

In every case a time estimate (which shall be inserted at the front of the bundle) shall be prepared which shall so far aspracticable be agreed by all parties and shall –



(a) specify separately (i) the time estimated to be required for judicial prereading and (ii) the time required for hearing allevidence and submissions and (iii) the time estimated to be required for preparing and delivering judgment; and

(b) be prepared on the basis that before they give evidence all witnesses will have read all relevant filed statements andreports.

10.2

Once a case has been listed, any change in time estimates shall be notified immediately by telephone (and thenimmediately confirmed in writing) –

(a) in the case of hearings in the RCJ, to the Clerk of the Rules;

(b) in the case of hearings in the

(c) in the case of hearings elsewhere, to the relevant listing officer.

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Taking cases out of the list

11.1

As soon as it becomes known that a hearing will no longer be effective, whether as a result of the parties reachingagreement or for any other reason, the parties and their representatives shall immediately notify the court by telephoneand by letter. The letter, which shall wherever possible be a joint letter sent on behalf of all parties with their signaturesapplied or appended, shall include –

(a) a short background summary of the case;

(b) the written consent of each party who consents and, where a party does not consent, details of the steps which havebeen taken to obtain that party’s consent and, where known, an explanation of why that consent has not been given;

(c) a draft of the order being sought; and

(d) enough information to enable the court to decide (i) whether to take the case out of the list and (ii) whether to make theproposed order.

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Penalties for failure to comply with the practice direction12.1

Failure to comply with any part of this practice direction may result in the judge removing the case from the list or puttingthe case further back in the list and may also result in a ‘wasted costs’ order in accordance with CPR Part 48.7 or someother adverse costs order.

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Commencement of the practice direction and application of other practicedirections13.1

This practice direction replaces President's Direction (Family Proceedings: Court Bundles) [2000] 1 FLR 536 and shall



have effect from 2 October 2006.

14.1

Any reference in any other practice direction to President's Direction (Family Proceedings: Court Bundles) [2000] 1 FLR536 shall be read as if substituted by a reference to this practice direction.

15.1

This practice direction should where appropriate be read in conjunction with President’s Direction (Human Rights Act 1998)[2000] 2 FLR 429 and with Practice Direction (Care Cases: Judicial Continuity and Judicial Case Management) appendedto the Public Law Protocol [2003] 2 FLR 719. In particular, nothing in this practice direction is to be read as removing oraltering any obligation to comply with the requirements of the Public Law Protocol.

This Practice Direction is issued –

(i) in relation to family proceedings, by the President of the Family Division, as the nominee of the Lord Chief Justice, withthe agreement of the Lord Chancellor; and

(ii) to the extent that it applies to proceedings to which section 5 of the Civil Procedure Act 1997 applies, by the Master ofthe Rolls as the nominee of the Lord Chief Justice, with the agreement of the Lord Chancellor.

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THE CENTRAL FAMILY COURT

(the Principal Registry of the Family Division)

DISTRICT JUDGE OF THE DAY

1. BackgroundThose at this court have been proud of the unique provision that has been made to parties by the institution of the District Judge of the Day who has provided a point of access to parties making applications that need immediate attention. At the present time, however, it is not practicable to allocate a judge to hear this list on a daily basis. The following arrangements will be introduced in order to ensure that cases that need urgent attention are dealt with in the best way, minimising inconvenience to the parties.

2. ReviewWe shall be reviewing all the procedures at this court and this will include provision for the work done by the District Judge of the Day. We would be helped by any suggestions. Please let us know through your professional association or contact Lorraine Morichelli on 020 7947 7400 ([email protected]).

3. Particular steps:

a. Genuine and emergency ex parte applications such as for non-molestation and allied orders.

i. These cases are often better dealt with on notice.

Applicants are asked, where appropriate, to obtain a listing for an urgent hearing ‘on notice’ and for leave to abridge the time for service (see below).

ii. Applications must be issued before 2.00 pm if they are to be heard on the same day. In cases of real emergency where it has not been possible to issue by that time, contact should be made to :

Divorce Section C Barbara Ellis 020 7947 6951Children Section Sue Fleet 020 7947 7461

With reasons, and a judge and/or his/her clerk will be emailed for a decision as to whether it will be taken.

HIS HONOUR JUDGE ALTMANSENIOR DESIGNATED FAMILY JUDGE FOR LONDON

mailto:[email protected]


iii. These applications will be heard between either 12.00 am to 1.00 pm or 2.00 pm and 3.00 pm. and a judge will have listed time to deal with such applications during those times.

NOTE: Any such applications should be accompanied by a draft order.

b. Orders associated with financial remedy cases, such as consent orders for approval or applications for freezing orders. Until 2nd September these applications should be dealt with in accordance with paragraph 4 (a) above. The Financial Remedy Unit will commence in September and after the 2nd September the Financial Remedy Officer should be contacted with any application, which initially should be made without attendance of any party or representative. Details of the arrangements will be published before September and a revision of this note will be issued.

c. Cases of genuine urgency not covered above. There will be an urgent referrals judge who will consider any such application on paper and determine whether a court hearing is necessary, or will assign an early date in conjunction with the listing manager and make such other order as may be appropriate. Such applications will not be listed as a matter of course before a judge in court, but will in the first instance be dealt with by the judge on paper. Any applications for urgent hearing of this kind must state

i. The issue that the shows urgency in the particular caseii. Whether this matter can be dealt with at an urgent ‘on

notice’ hearing with abridgement of time for service; if not, full reasons must be given.

d. There are other cases where it may be uncertain as to whether any or what order should be considered. This may involve litigants in person who are unfamiliar with the court process in particular. Such cases will be considered initially by the counter staff who will direct the application to be dealt with in the appropriate way.

e. Private family law cases for the First Hearing and Dispute Resolution Appointment. It is recognised that these have not been listed within 4 weeks and that this has been causing applications for a listing to be made to the District Judge of the Day. Immediate steps have been put in hand to increase the number of days set aside for such hearings in order to reduce the backlog and achieve the 4 week time limit.

His Honour Judge John Altman Lincoln PereiraSenior Designated Family Judge London North & East CFT Cluster Manager29th July 2013

9/26/13 Litigants in person - The Law Society

www.lawsociety.org.uk/advice/practice-notes/litigants-in-person/ 1/8

Litigants in person19 April 2012

Contents1 Introduction

1.1 Who should read this practice note?1.2 What does this practice note cover?1.3 Outcomes-focused regulation1.4 SRA Principles1.5 Status of this practice note1.6 Terminology

2. What is a litigant in person?2.1 Where might you encounter litigants in person?

3 Your approach and the SRA Code3.1 Taking 'unfair advantage'

4. Duty to the court4.1 Keeping your client informed4.2 Assistance for LiPs in appropriate circumstances4.3 Expectations of the court during proceedings

5 Persistent unmeritorious claims/vexatious litigants5.1 Application to the Attorney General

6 Assistance available to LiPs6.1 McKenzie Friends6.2 Citizens Advice Bureau6.3 Personal Support Unit

7 More information7.1 Further services and support7.2 Training and Events7.3 Related resources7.4 Practice Advice Line

1 Introduction

1.1 Who should read this practice note?All solicitors who may need to deal with litigants in person (LiPs) as part of their work.

1.2 What does this practice note cover?

This practice note offers guidance on the issues that you should take into account in your dealings with LiPs,including managing any conflict between your duties to the court and duties to your client, and other areas ofsensitivity.

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1.3 Outcomes-focussed regulation

The Solicitors Regulation Authority implemented outcomes focused regulation in October 2011. OFR is a move awayfrom a rules-based approach to one that focuses on high-level outcomes governing practice and the quality ofoutcomes for clients.

An overview of OFR can be found on the Law Society's website. This provides information on what the SRAHandbook contains, including a summary of the chapters in the Code of Conduct and a summary of the reportingrequirements included throughout the Handbook.

http://www.lawsociety.org.uk/advice/regulation/



The SRA has published a Handbook, which sets out all the SRA's regulatory requirements. It outlines the ethicalstandards that the SRA expects of law firms and practitioners and the outcomes that the SRA expects them toachieve for their clients.

The SRA Handbook includes a Code of Conduct, which replaces the Solicitors' Code of Conduct 2007. The new Codeestablishes outcomes focused conduct requirements and each chapter outlines outcomes and indicative behaviours.Chapter 11 of the SRA Code of Conduct 2011, Relations with third parties is relevant here.

The new SRA Handbook and Code came into force on 6 October 2011. The Solicitors' Code of Conduct 2007, and allof its rules and guidance, do not apply to conduct undertaken after that date and cease to have any effect, save inrespect of any review by the SRA of conduct taken prior to 6 October 2011 to which the 2007 Code will still beapplied.

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1.4 SRA PrinciplesThere are ten mandatory principles which apply to all aspects of practice. They can be found in the SRA Handbook.You should always bear in mind the ten principles and use them as your starting point.

Those which are particularly relevant in this context are as follow:

Uphold the rule of law and the proper administration of justice;Act with integrity;Do not allow your independence to be compromised;Act in the best interests of your client; andBehave in a way that maintains the trust the public places in you and in the provision of legal services.

As detailed below, when dealing with LiPs you should be particularly mindful of your duty to act in the best interestsof your client (Principle 4), and your duty to ensure that your independence is not compromised (Principle 3).

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1.5 Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the LawSociety's view of good practice in a particular area. They are not intended to be the only standard of good practicethat solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversightbodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or ofinadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful,the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society's Practice Advice Service.

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1.6 TerminologyMustA specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRAHandbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation orthe SRA Handbook.

Should

Outside of a regulatory context, good practice for most situations in the Law Society's view.In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may beset out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may besituations where the suggested route is not the best possible route to meet the needs of your client. However, if youdo not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach youhave taken is appropriate, either for your practice, or in the particular retainer.

http://www.sra.org.uk/solicitors/handbook/welcome.page

http://www.sra.org.uk/solicitors/handbook/code/content.page

http://www.sra.org.uk/solicitors/handbook/code/part5/content.page


http://www.sra.org.uk/solicitors/handbook/handbookprinciples/content.page

http://www.sra.org.uk/solicitors/handbook/handbookprinciples/content.page

http://www.lawsociety.org.uk/advice/practice-advice-service/



MayA non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose isdetermined by the profile of the individual practice, client or retainer. You may be required to justify why this was anappropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes focused regulation

SRA - Solicitors Regulation Authority

IB - Indicative behaviour

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2 What is a litigant in person?There is no typical profile of a litigant in person. The term commonly encompasses individuals who wish to representthemselves in legal proceedings, which may progress to court or tribunal. However, unrepresented parties may beencountered at any stage of the process, including prior to the start and after the issue of proceedings, as well asduring proceedings. Any relevant professional obligations in this context will apply whether or not proceedings havebeen issued.

Some LiPs will take legal advice up to the point of going to a court or tribunal, where they will represent themselves;others may have chosen to litigate or defend claims brought against them without having obtained any legal advice.Establishing why a LiP is unrepresented or has chosen not to be represented may help you to understand theirposition and thereby inform the process. For example, if a LiP has no legal knowledge or a negative perception aboutlegal professionals generally, this will impact upon the way in which you engage with them.

You should not make assumptions about the merit of a LiP's case on the basis that they have not obtainedrepresentation. Some LiPs are court-literate and able to navigate the process because they have a legal backgroundor other expertise which equips them for managing the case.

Such LiPs should be distinguished from those who feel that they have no other option but to represent themselvesbecause they cannot afford to instruct a solicitor and have not been able to obtain free legal advice. Those in thissituation may not have any comprehension of the legal process, nor are they able to form an objective assessment oftheir own case. The SRA Code discussed at section 3 of this Note, and your duties to the court at section 4, may behelpful in framing your approach to such LiPs.

2.1 Where might you encounter litigants in person?With the decline in public funding and in the midst of a difficult economic climate, LiPs are likely to become morefrequently encountered in some areas of practice, and particularly so in family and civil cases. However, this is not anew development; it is already common for unrepresented parties to appear at employment tribunals and otherhearings.

There has also been a proliferation in the numbers of litigants represented by non-legally qualified persons in smallclaims hearings, as per The Lay Representatives (Rights of Audience) Order 1999.

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3 Your approach and the SRA CodeAmendments to the Handbook since the introduction of OFR in October 2011 do not impact upon your duties toclients and LiPs. Your duties to act in the best interests of your client, and to the court (see section 4), remainparamount. However, the SRA Code refers to other specific considerations relevant to your dealings with LiPs.

IB 11.7 states that you should not take 'unfair advantage' of an opposing party's lack of legal knowledge where theyhave not instructed a solicitor. Further, IB 11.9 states that you should not use your professional status or qualificationto take 'unfair advantage' of another individual in order to advance your client's interests.

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3.1 Taking 'unfair advantage'

Taking 'unfair advantage' refers to behaviour that any reasonable solicitor would regard as wrong and improper. Thatmight include:

bullying and unjustifiable threats;misleading or deceitful behaviour;claiming what cannot be properly claimed;demanding what cannot properly be demanded.

Such conduct is likely to be penalised if identified by a judge or upon complaint.

Conversely, knowing and using law and procedure effectively against your opponent because you have the skills todo so, whether that be as against a qualified representative or an unrepresented LiP, would not in itself be deemed tobe either taking 'unfair advantage' or a breach of the SRA Code.

You should be mindful in this context that correspondence and telephone calls from some LiPs may be emotive,repetitive, and potentially hostile. Responses should be relevant, measured and calm; 'tit-for-tat' tactics should beavoided, and you should behave in a manner of which the court would approve. This includes treating LiPs withcourtesy and in a way that any ordinary person would regard as fair and reasonable.

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4 Duty to the courtYour duties to the court - and to your client - should be your primary considerations throughout.

4.1 Keeping your client informed

The involvement of a LiP will often slow down the litigation process, as judges may have to take time to explainproceedings, and will wish to ensure that all parties are 'court ready'. The judge may expect you to assist in thisregard, or to defer to any latitude the court may offer. You will need to explain this to your client and obtaininstructions. However, you should be mindful throughout that under Chapter 3 of the SRA Code (Conflicts ofinterests), you must cease to act where there is a conflict between you and your client, and this must be balancedwith your duty to the court as discussed below.

Where it appears that your client might be prejudiced, you should not be constrained from challenging any unusualconcessions that the court might otherwise be minded to grant. In extreme cases you may refuse to assist a LiP, oreven withdraw from acting at all should you feel that the court's request would conflict with your client's interestswhile placing you in contempt of court if you fail to comply.

Chapter 5 of the SRA Code (Your client and the court) is relevant here:

Outcome 5.3 holds that you must comply with court orders which place obligations on you, andOutcome 5.5 states that you must inform your client of circumstances in which your duties to the courtoutweigh your obligations to your client.

Ultimately, you will need to balance all interests and duties to determine how best to proceed on a case by casebasis.

If a LiP understands what is required of them, it will make the litigation process less burdensome for all parties.Accordingly, whilst it may be legitimate for you to refuse to do so there could be circumstances in which the interestsof your client and the court will be furthered by providing some level of assistance, for example in avoidingunnecessary costs being expended in dealing with a misguided initiative. The court may also request assistance froma represented party where a LiP is clearly experiencing practical difficulties.

However, it is important that any dealings with a LiP intended to give constructive guidance are carefully consideredand properly explained to your own client so as not to give rise to the impression that you are advising the opposingparty. You should also consider whether you will carry the cost of any additional work or time involved in assisting theLiP, or seek to recover any additional costs you incur from your own client. If such a scenario is likely to arise, youshould discuss it with your client in advance. You may also provide guidance as to what would and what would notamount to recoverable costs during proceedings.

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4.2 Assistance for LiPs in appropriate circumstances

Any steps taken to assist an opposing LiP should be done in a manner consistent with your duty to your client and tothe court. Any such assistance should be non-advisory and limited to purely procedural issues. Depending on thecircumstances, it might be appropriate to consider the following:

Where it is necessary that the attention of an opposing party be drawn to a particular procedural rule a web-linkcould be provided for the LiP;Where legal argument is advanced it may save court time and be a matter of courtesy to provide a link or copyof any authority where an opposing solicitor would normally only require a citation. However, you are notobliged to provide information that your opponent would already be expected to have in their possession;It is sensible to avoid the use of technical language or legal jargon in your communications with a LiP; andYou should allow sufficient time and information to enable the costs in any matter to be agreed, as determinedby IB 11.1 of the SRA Code.

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4.3 Expectations of the court during proceedings

Where a LiP is a defendant to proceedings and no other Pre-Action Protocol applies, The Civil Procedure Rules(CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention toparagraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction.You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and maygive rise to a liability for costs.

Where a specialist Protocol applies, and more detailed pre-action procedures are required, a LiP will ultimately besubject to the same obligations as a represented party. If you consider it to be in the interests of your client, and toprevent delays in proceedings, you may send a copy of the relevant Protocol to a LiP when first contacting themabout a claim.

In preparing for hearings, the court may expect you to carry out the following:

Prepare all necessary bundles of documents and provide them to the court (unless the LiP confirms that theywill undertake the work);Provide copies of bundles to the LiP at the same time as providing them to the court;Provide written arguments and documents to the court and the LiP in good time before any hearing, unless adelay is unavoidable; andWhere necessary, promptly draw and seal the order made by the court (unless the LiP confirms that they willundertake the work).

4.3.1 Employment tribunals

While giving primary regard to the interests of your client, the following considerations should be taken into accountduring employment tribunals:

LiPs may not be aware of The Employment Tribunals Rules of Procedure and may not therefore appreciate theneed to ensure compliance with tribunal orders and the consequences of failing to do so. If the LiP haspreviously missed deadlines, you may remind them before the date for compliance with a tribunal order. Thismay be in the interests of your client where the tribunal would otherwise be minded to grant an extension oftime;It may be appropriate to remind unrepresented LiPs before the date for compliance with a court order if itserves the interests of your client and duty to the court;Negotiating settlement terms with a LiP may be difficult if the individual has not had the benefit of receivingprofessional advice as to what is realistic. In these circumstances, it may be beneficial to involve theAdvisory, Conciliation and Arbitration Service (ACAS) to assist with the settlement process.

4.3.2 Family law

While giving primary regard to the interests of your client, the following considerations should be taken into account inthe context of family proceedings:

It might be appropriate to remind unrepresented LiPs before the date for compliance with a court order if itserves the interests of your client and duty to the court;

http://www.justice.gov.uk/courts/procedure-rules/civil


http://www.acas.org.uk/index.aspx?articleid=1461



Any documents relating to children and prepared for the purposes of family proceedings are strictly confidentialand may be disclosed to a restricted class of persons only (see rule 12.75 of the Family Procedure Rules2010), as well as to a McKenzie Friend (see section 6). Under 12.73 of the 2010 Rules, failure to comply willamount to contempt of court. It may be necessary to ensure that the LiP is fully aware of this for your client'sprotection and that of the children;Family cases can involve LiPs who are particularly angry and upset, or even vexatious (see section 5). It maybe prudent to ensure that you keep accurate records of any meetings and to follow up any conversations inwriting summarising what has been discussed; andCross-examination by a LiP of an ex-partner can be emotionally charged. You may wish to explain to the LiPthat cross-examination should not be aggressive, and that the judge would be asked to intervene if it weredeemed to cross these boundaries.

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5 Persistent unmeritorious claims/vexatious litigantsYou should be vigilant about litigants who habitually and persistently issue claims without reasonable grounds, wheresuch practice amounts to an abuse of the court process. They should be distinguished from LiPs who are displayingsymptoms of stress or anxiety, or those who are suspicious of lawyers and the legal system.

Dealings with such litigants can be time consuming and expensive. You may take the following steps to managepeople who you suspect fall into this category:

1. if a Claim Form is issued and the name appears familiar, check that the individual has not made a claim aboutthe same issue previously if the cost of doing so is proportionate, subject to your client's instructions;

2. consult the court's list of individuals that have been declared vexatious by the Attorney General, and thosesubject to Civil Restraint Orders (CRO) (see section 5.1);

3. if there are no reasonable grounds for bringing a claim, or if there has been a failure to comply with a rule,practice direction or court order, apply to strike out the claim; and

4. if you believe that the LiP in question is vexatious or a habitual litigant without reasonable grounds for issuingrepeated claims, apply to the court for a CRO which prevents a LiP from bringing a claim or making anapplication in certain circumstances and for specified lengths of time (see also section 5.1).

5.1 Application to the Attorney GeneralIf you have explored all of the options detailed above, including an application for a CRO, and you have evidence thatan individual is making persistent unmeritorious claims, you may make an application for the Attorney General todeclare a LiP vexatious.

Under section 42 of the Senior Courts Act 1981, the Attorney General can apply to the High Court to prevent a litigantinstituting any proceedings without the leave of the High Court, either for a specified period or indefinitely. Such anapplication should only be made in exceptional circumstances.

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6. Assistance available to LiPsFor information, this section outlines the resources available to LiPs. You are not obliged to provide any suchinformation to a LiP, although you may wish to do so if you feel it is in your client's interests.

There are a number of national initiatives which aim to improve the level of support available to LiPs. The use ofmediation is favoured, and the Government aims to increase awareness so that individuals are better placed tounderstand the options available to them.

6.1 McKenzie Friends

During court proceedings, LiPs have the right to seek reasonable assistance from a layperson, sometimes called aMcKenzie Friend. A McKenzie Friend may sit alongside a LiP and provide general support. You should note thefollowing in relation to McKenzie Friends:

A McKenzie Friend is permitted to further the interests of justice by achieving a level playing field andensuring a fair hearing. Requests for such assistance will only be refused for compelling reasons, and in the

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http://www.legislation.gov.uk/uksi/2010/2955/article/12.73/made

http://www.legislation.gov.uk/ukpga/1981/54/section/42



event, the judge must explain those reasons fully to the LiP and the prospective McKenzie Friend;A LiP cannot allow a McKenzie Friend to speak directly on their behalf unless invited to do so by the court,either within the confines of the court or in pre-trial meetings;A LiP is entitled to disclose confidential information and court papers to the McKenzie Friend in order to givethem a better understanding of the matter in hand;A McKenzie Friend may assist with such tasks as taking notes, helping to organise documents, and makingsuggestions;McKenzie Friends are not permitted to act as a LiP's agent in relation to court proceedings or manage a LiP'scase outside of court. If you receive correspondence from a McKenzie Friend on a LiP's behalf, you shouldrespond to the LiP directly and not to their McKenzie Friend;A LiP will need to advise the court if a McKenzie Friend will be attending hearings, meetings etc., but aMcKenzie Friend has no right of address to the court; andIt is not good practice for the court to exclude the proposed McKenzie Friend from the courtroom or chamberswhilst the application for assistance is being made by the unrepresented party, as a LiP who requires aMcKenzie Friend is likely to need their assistance to make the application for their appointment in the firstinstance.

Guidance designed for LiPs who opt for McKenzie Friend assistance has been issued by the President of the FamilyDivision, and provides an overview.

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6.2 Citizens Advice BureauThe local Citizens Advice Bureau (CAB) may be able to assist LiPs by providing independent, confidential, free andimpartial legal advice. If the CAB is unable to assist, they may make referrals to other services. This will often be thein a family law context. Only four CABs give specialist family legal advice, including the Royal Courts of JusticeAdvice Bureau.

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6.3 Personal Support Unit

The Personal Support Unit (PSU) is a charity which provides assistance for LiPs. It does not provide legal advice, butoffers practical guidance and emotional support to help clients solve their problems. It has offices in the Royal Courtsof Justice, the Principal Registry of the Family Division, Wandsworth County Court, Manchester Civil Justice Centreand Cardiff Civil Justice Centre.

PSU volunteers are experienced and skilled, and are familiar with court processes. The service is free, independent,confidential and impartial. All aspects of the work are subject to an equal opportunities policy, and the service isoffered to anyone who requests it. PSU volunteers are permitted to accompany LiPs in court, provide them with acalming environment prior to and post court hearings and talk them through the case in hand. However, they are notpermitted to provide LiPs with legal advice.

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7. More information

7.1 Further services and supportLawWorksCitizens Advice BureauACAS

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7.2 Training and events

Law Society Webinar: Litigants in person in the family courts (0.5 hours CPD)

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http://www.judiciary.gov.uk/Resources/JCO/Documents/Guidance/pfd_guidance_mckenzie_friends_oct_2008.pdf

http://www.rcjadvice.org.uk/

http://lawworks.org.uk/

http://www.citizensadvice.org.uk/

http://www.acas.org.uk/index.aspx?articleid=1461

http://cpdcentre.lawsociety.org.uk/course/3710/litigants-in-person-in-the-family-courts



7.3 Related resources

SRA HandbookSenior Courts Act 1981The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004Civil Procedure Rules

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7.4 Practice Advice Line

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can becontacted on 0870 606 2522 from 09:00 to 17:00 on weekdays or email [email protected]

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http://www.legislation.gov.uk/ukpga/1981/54/contents


http://www.justice.gov.uk/guidance/courts-and-tribunals/courts/procedure-rules/civil/menus/rules.htm


PRACTICE GUIDANCE: MCKENZIE FRIENDS (CIVIL ANDFAMILY COURTS)

Civil and Family Courts

Lord Neuberger of Abbotsbury, Master of the Rollsand Sir Nicholas Wall, the President of the Family Division

12 July 2010

Practice guidance – McKenzie friends

Statutory provisions consideredFamily Proceedings Courts (Children Act 1989) Rules 1991 (SI 1991/1395),

r 16A(5A)Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991 (SI 1991/1991)Civil Procedure Rules 1998 (SI 1998/3132), r 48.6(2), (3)(b)

Cases referred to in judgmentAgassi v Robinson (Inspector of Taxes) [2005] EWCA Civ 1507, [2006] 1 WLR 2126,

[2006] 1 All ER 900, CAAttorney-General v Purvis [2003] EWHC 3190 (Admin) (unreported) 3 December

2003, QBDChauhan v Chauhan [1997] 2 FCR 206, CAClarkson v Gilbert [2000] 2 FLR 839, CAN (McKenzie Friend: Rights of Audience), Re [2008] EWHC 2042 (Fam), [2008] 1

WLR 2743, [2008] 2 FLR 1899, FDO (Children) (Hearing in Private: Assistance), Re; Re W (Children); Re W-R (a Child)

[2005] EWCA Civ 759, [2006] Fam 1, [2005] 3 WLR 1191 sub nom In the Matterof the Children of Mr O’connell, Mr Whelan and Mr Watson [2005] 2 FLR 967, CA

Practice Direction: Guide to Case Management in Public Law Proceedings [2008] 2FLR 668

Practice Note (Family Courts: McKenzie Friends) (No 2) [2008] 1 WLR 2757R v Bow County Court ex parte Pelling [1999] 2 FLR 1126, CAR v Leicester City Justices and Another ex parte Barrow and Another [1991] 2 QB

260, CAUnited Building and Plumbing Contractors v Kajla [2002] EWCA Civ 628, [2002] All

ER (D) 265 (Apr), CAWestland Helicopters Ltd v Sheikh Salah Al-Hejailan [2004] EWHC 1688 (Comm),

[2004] 2 Lloyd’s Rep 535, QBD

LORD NEUBERGER MR AND SIR NICHOLAS WALL P:[1] This Guidance applies to civil and family proceedings in the Court ofAppeal (Civil Division), the High Court of Justice, the County Courts and theFamily Proceedings Court in the Magistrates’ Courts1. It is issued as guidance(not as a Practice Direction) by the Master of the Rolls, as Head of CivilJustice, and the President of the Family Division, as Head of Family Justice. Itis intended to remind courts and litigants of the principles set out in the

1 References to the judge or court should be read where proceedings are taking place underthe Family Proceedings Courts (Matrimonial Proceedings etc) Rules 1991, as a referenceto a justices’ clerk or assistant justices’ clerk who is specifically authorised by a justices’clerk to exercise the functions of the court at the relevant hearing. Where they are takingplace under the Family Proceedings Courts (Children Act 1989) Rules 1991 they shouldbe read consistently with the provisions of those Rules, specifically rule 16A(5A).

962 [2010] 2 FLR

authorities and supersedes the guidance contained in Practice Note (FamilyCourts: McKenzie Friends) (No 2) [2008] 1 WLR 2757, which is nowwithdrawn2. It is issued in light of the increase in litigants-in-person (litigants)in all levels of the civil and family courts.

The right to reasonable assistance[2] Litigants have the right to have reasonable assistance from alayperson, sometimes called a McKenzie Friend (MF). Litigants assisted byMFs remain litigants-in-person. MFs have no independent right to provideassistance. They have no right to act as advocates or to carry out the conductof litigation.

What McKenzie friends may do[3] MFs may:

i) provide moral support for litigants;ii) take notes;iii) help with case papers;iv) quietly give advice on any aspect of the conduct of the case.

What McKenzie friends may not do[4] MFs may not:

i) act as the litigants’ agent in relation to the proceedings;ii) manage litigants’ cases outside court, for example by signing

court documents; oriii) address the court, make oral submissions or examine witnesses.

Exercising the right to reasonable assistance[5] While litigants ordinarily have a right to receive reasonable assistancefrom MFs the court retains the power to refuse to permit such assistance. Thecourt may do so where it is satisfied that, in that case, the interests of justiceand fairness do not require the litigant to receive such assistance.[6] A litigant who wishes to exercise this right should inform the judge assoon as possible indicating who the MF will be. The proposed MF shouldproduce a short curriculum vitae or other statement setting out relevantexperience, confirming that he or she has no interest in the case andunderstands the MF’s role and the duty of confidentiality.

2 R v Leicester City Justices and Another ex parte Barrow and Another [1991] 2 QB 260,Chauhan v Chauhan [1997] 2 FCR 206, R v Bow County Court ex parte Pelling [1999] 2FLR 1126, Attorney-General v Purvis [2003] EWHC 3190 (Admin) (unreported)3 December 2003, Clarkson v Gilbert [2000] 2 FLR 839, United Building and PlumbingContractors v Kajla [2002] EWCA Civ 628, [2002] All ER (D) 265 (Apr), Re O(Children) (Hearing in Private: Assistance); Re W (Children); Re W-R (a Child) [2005]EWCA Civ 759, [2006] Fam 1, [2005] 3 WLR 1191,sub nom In the Matter of theChildren of Mr O’connell, Mr Whelan and Mr Watson [2005] 2 FLR 967, WestlandHelicopters Ltd v Sheikh Salah Al-Hejailan [2004] EWHC 1688 (Comm), [2004]2 Lloyd’s Rep 535. Agassi v Robinson (Inspector of Taxes) [2005] EWCA Civ 1507,[2006] 1 WLR 2126, Re N (McKenzie Friend: Rights of Audience) [2008] EWHC 2042(Fam), [2008] 1 WLR 2743, [2008] 2 FLR 1899.

[2010] 2 FLR Lord Neuberger MR, Sir N Wall P P Guidance (Civ/Fam Cts) 963

[7] If the court considers that there might be grounds for circumscribingthe right to receive such assistance, or a party objects to the presence of, orassistance given by a MF, it is not for the litigant to justify the exercise of theright. It is for the court or the objecting party to provide sufficient reasonswhy the litigant should not receive such assistance.[8] When considering whether to circumscribe the right to assistance orrefuse a MF permission to attend the right to a fair trial is engaged. The mattershould be considered carefully. The litigant should be given a reasonableopportunity to argue the point. The proposed MF should not be excluded fromthat hearing and should normally be allowed to help the litigant.[9] Where proceedings are in closed court, ie the hearing is in chambers,is in private, or the proceedings relate to a child, the litigant is required tojustify the MF’s presence in court. The presumption in favour of permitting aMF to attend such hearings, and thereby enable litigants to exercise the rightto assistance, is a strong one.[10] The court may refuse to allow a litigant to exercise the right to receiveassistance at the start of a hearing. The court can also circumscribe the rightduring the course of a hearing. It may be refused at the start of a hearing orlater circumscribed where the court forms the view that a MF may give, hasgiven, or is giving, assistance which impedes the efficient administration ofjustice. However, the court should also consider whether a firm andunequivocal warning to the litigant and/or MF might suffice in the firstinstance.[11] A decision by the court not to curtail assistance from a MF should beregarded as final, save on the ground of subsequent misconduct by the MF oron the ground that the MF’s continuing presence will impede the efficientadministration of justice. In such event the court should give a short judgmentsetting out the reasons why it has curtailed the right to assistance. Litigantsmay appeal such decisions. MFs have no standing to do so.[12] The following factors should not be taken to justify the court refusingto permit a litigant receiving such assistance:

(i) the case or application is simple or straightforward, or is, forinstance, a directions or case management hearing;

(ii) the litigant appears capable of conducting the case withoutassistance;

(iii) the litigant is unrepresented through choice;(iv) the other party is not represented;(v) the proposed MF belongs to an organisation that promotes a

particular cause;(vi) the proceedings are confidential and the court papers contain

sensitive information relating to a family’s affairs.

[13] A litigant may be denied the assistance of a MF because its provisionmight undermine or has undermined the efficient administration of justice.Examples of circumstances where this might arise are:

i) the assistance is being provided for an improper purpose;ii) the assistance is unreasonable in nature or degree;

964 Lord Neuberger MR, Sir N Wall P P Guidance (Civ/Fam Cts) [2010] 2 FLR

iii) the MF is subject to a civil proceedings order or a civil restraintorder;

iv) the MF is using the litigant as a puppet;v) the MF is directly or indirectly conducting the litigation;vi) the court is not satisfied that the MF fully understands the duty

of confidentiality.

[14] Where a litigant is receiving assistance from a MF in careproceedings, the court should consider the MF’s attendance at any advocates’meetings directed by the court, and, with regard to cases commenced after1.4.08, consider directions in accordance with paragraph 13.2 of the PracticeDirection: Guide to Case Management in Public Law Proceedings [2008] 2FLR 668.[15] Litigants are permitted to communicate any information, includingfiled evidence, relating to the proceedings to MFs for the purpose of obtainingadvice or assistance in relation to the proceedings.[16] Legal representatives should ensure that documents are served onlitigants in good time to enable them to seek assistance regarding their contentfrom MFs in advance of any hearing or advocates’ meeting.[17] The High Court can, under its inherent jurisdiction, impose a civilrestraint order on MFs who repeatedly act in ways that undermine the efficientadministration of justice.

Rights of audience and rights to conduct litigation[18] MFs do not have a right of audience or a right to conduct litigation. Itis a criminal offence to exercise rights of audience or to conduct litigationunless properly qualified and authorised to do so by an appropriate regulatorybody or, in the case of an otherwise unqualified or unauthorised individual (ie,a lay individual including a MF), the court grants such rights on acase-by-case basis3.[19] Courts should be slow to grant any application from a litigant for aright of audience or a right to conduct litigation to any lay person, including aMF. This is because a person exercising such rights must ordinarily beproperly trained, be under professional discipline (including an obligation toinsure against liability for negligence) and be subject to an overriding duty tothe court. These requirements are necessary for the protection of all parties tolitigation and are essential to the proper administration of justice.[20] Any application for a right of audience or a right to conduct litigationto be granted to any lay person should, therefore, be considered very carefully.The court should only be prepared to grant such rights where there is goodreason to do so taking into account all the circumstances of the case, whichare likely to vary greatly. Such grants should not be extended to lay personsautomatically or without due consideration. They should not be granted formere convenience.[21] Examples of the type of special circumstances which have been heldto justify the grant of a right of audience to a lay person, including a MF, are:

i) that person is a close relative of the litigant;

3 Legal Services Act 2007, ss 12–19 and Sch 3.


ii) health problems preclude the litigant from addressing the court,or conducting litigation, and the litigant cannot afford to pay fora qualified legal representative;

iii) the litigant is relatively inarticulate and prompting by thatperson may unnecessarily prolong the proceedings.

[22] It is for the litigant to persuade the court that the circumstances of thecase are such that it is in the interests of justice for the court to grant a layperson a right of audience or a right to conduct litigation.[23] The grant of a right of audience or a right to conduct litigation to laypersons who hold themselves out as professional advocates or professionalMFs or who seek to exercise such rights on a regular basis, whether forreward or not will, however, only be granted in exceptional circumstances. Todo otherwise would tend to subvert the will of Parliament.[24] If a litigant wants a lay person to be granted a right of audience, anapplication must be made at the start of the hearing. If a right to conductlitigation is sought such an application must be made at the earliest possibletime and must be made, in any event, before the lay person does anythingwhich amounts to the conduct of litigation. It is for litigants to persuade thecourt, on a case-by-case basis, that the grant of such rights is justified.[25] Rights of audience and the right to conduct litigation are separaterights. The grant of one right to a lay person does not mean that a grant of theother right has been made. If both rights are sought their grant must be appliedfor individually and justified separately.[26] Having granted either a right of audience or a right to conductlitigation, the court has the power to remove either right. The grant of suchrights in one set of proceedings cannot be relied on as a precedent supportingtheir grant in future proceedings.

Remuneration[27] Litigants can enter into lawful agreements to pay fees to MFs for theprovision of reasonable assistance in court or out of court by, for instance,carrying out clerical or mechanical activities, such as photocopyingdocuments, preparing bundles, delivering documents to opposing parties orthe court, or the provision of legal advice in connection with courtproceedings. Such fees cannot be lawfully recovered from the opposing party.[28] Fees said to be incurred by MFs for carrying out the conduct oflitigation, where the court has not granted such a right, cannot lawfully berecovered from either the litigant for whom they carry out such work or theopposing party.[29] Fees said to be incurred by MFs for carrying out the conduct oflitigation after the court has granted such a right are in principle recoverablefrom the litigant for whom the work is carried out. Such fees cannot belawfully recovered from the opposing party.[30] Fees said to be incurred by MFs for exercising a right of audiencefollowing the grant of such a right by the court are in principle recoverablefrom the litigant on whose behalf the right is exercised. Such fees are alsorecoverable, in principle, from the opposing party as a recoverabledisbursement: rr 48.6(2) and 48.6(3)(b) of the Civil Procedure Rules 1998.

966 Lord Neuberger MR, Sir N Wall P P Guidance (Civ/Fam Cts) [2010] 2 FLR

Personal Support Unit and Citizen’s Advice Bureau[31] Litigants should also be aware of the services provided by localPersonal Support Units and Citizens’ Advice Bureaux. The PSU at the RoyalCourts of Justice in London can be contacted on 020 7947 7701, by email [email protected] or at the enquiry desk. The CAB at the Royal Courts ofJustice in London can be contacted on 020 7947 6564 or at the enquiry desk.

Lord Neuberger of AbbotsburyMaster of the Rolls and Head of Civil Justice

Sir Nicholas WallPresident of the Family Division and Head of Family Justice
