LITIGANTS IN PERSON: ASSISTANCE AND THE COURTS

Consultation on McKenzie friends: the right end of the telescope?

 

The English system of litigation and of assistance to litigants faces criticism and review from two different directions: The Lord Chief Justice’s Report 2015 (January 2016 https://www.judiciary.gov.uk/wp-content/uploads/2016/01/lcj_report_2015-final.pdf) and ‘Reforming the court’s approach to McKenzie Friends: A Consultation’ (February 2016: https://www.judiciary.gov.uk/wp-content/uploads/2016/02/mf-consultation-paper-feb2016.pdf) (‘the consultation paper’). This note is concerned with the consultation and to comment on the help which may be needed by courts and parties from people trained in law at various levels. Meanwhile the comment of the Lord Chief Justice in the introduction to his Report must be born in mind as the future of lay representation is considered:

 

Our system of justice has become unaffordable to most. In consequence there has been a considerable increase of litigants in person for whom our current court system is not really designed.

 

There are a number of constants when operation of the court system is considered. These include: that the law and the procedure by which it operates can be – and often is – complex; that litigants are rarely the person best able to help themselves and frequently want help from trained professional people to assist them in court (and those people want to be paid); that judges often want assistance from a person specialist in the field being considered by the court. The last point is illustrated by Gregory v Turner [2003] EWCA Civ 183, a case which a district judge had regarded as a small claim, involving damages of £100; and a judge had rejected on appeal and awarded costs against the Gregorys. In the Court of Appeal Brooke, Sedley and Carnwath LJJ (who jointly wrote the court’s 117 paragraph judgment) said:

 

[4] Because of the difficulty of some of the matters we had to decide we sought the assistance of an advocate to the court, and Miss Lee appeared in that capacity. The Gregorys had the benefit of advice given to them by counsel instructed by the Bar’s Pro Bono Unit (although he did not appear at the hearing), and Messrs Freshfields prepared the court’s bundles on a pro bono basis. We are grateful to all of them for their help.

[5] We permitted Mr Morris to make submissions to us on behalf of the Gregorys after we had heard Miss Lee’s submissions. The council did not appear on the third application, but we had the benefit of their written submissions in the court below. We ensured that notice of this hearing should be given to the Turners’ solicitors, and we will refer in paragraph 38 below to the short written submissions we received from them.

 

That is to say, the parties had no legal representation in the Court of Appeal, though the Gregorys and the court had had some assistance in preparation; there was an advocate to the court; and there was lay assistance to the Gregorys from Mr Morris. In the final analysis the court found that the district judge and a judge to whom the Gregorys appealled had both got it wrong; but because leave to appeal from the judge had been refused the Gregory’s could take their complaint no further (§§45-46; Access to Justice Act 1999 s 54). (The justice of this conclusion, in itself, takes some subtlety of forensic mind for anyone accustomed to general concepts of fairness.)

 

Representation in civil courts

 

Traditionally parties have been represented, and courts assisted, by practising lawyers. With the withering of availability of legal aid lawyers are often too expensive for most ordinary people. Enter the ‘McKenzie friend’ (as defined by the consultation paper at §2.3: see below) whose training and ability as a lawyer is unassessed, whose status is unregulated and who, as far as is known, is generally uninsured. As will be explained, the consultation paper is based on the symptoms of judicial concern – namely, lay (ie non-qualified lawyer) representation – not the cause, namely the problems which lay parties confront with self-representation and confronted by often complex law and procedure.

 

Though well-researched, the consultation paper is a modest document. In an introduction it explains the back-ground to the subject of representation: by parties themselves, by lawyers, and by McKenzie friends. The consultation takes the view (at §2.5) that there is a ‘common law right [for an unrepresented individual’ to receive reasonable assistance in proceedings’; and defines help which may be provided to litigants in person (the consultation’s definition of a McKenzie friend at §2.3) as:

 

While LIPs conduct their own litigation individuals, known as McKenzie Friends, often help them. This may take a variety of forms from the provision of moral support, to – with the court’s permission – carrying out the conduct of litigation or acting as an advocate on the LIP’s behalf. Only at the courts’ discretion, may a McKenzie Friend be granted a right to address the court in order to help the LIP present their case to the court. The grant of such a discretionary right has become increasingly common.

 

Litigants in person: a judicial working group

 

As background to the reforms under review the consultation paper it cites a 2011 Civil Justice Council report on Access to Justice for Litigants in Person (https://www.judiciary.gov.uk/wp-content/uploads/2014/05/report-on-access-to-justice-for-litigants-in-person-nov2011.pdf) and the Judicial Working Group on Litigants in Person: report (July 2013: https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf chaired by Mr Justice Hickinbottom – ‘the Hickinbottom report’). Some recommendations of that report, in relation to McKenzie friends, are summarised, economically (as will be seen):

 

[3.3] The [Hickinbottom report] considered reform in its report in 2013 [at §§6.22-6.28]. It recommended that consideration be given to:

(i) rationalising the approach taken to McKenzie Friends across the courts and tribunals;

(ii) codifying in the Civil and Family Procedure Rules the practice and procedure relating to McKenzie Friends;

(iii) issuing further guidance to maximise the positive benefits, and minimise the negative effects, McKenzie Friends bring to the administration of justice;

(iv) replacing the term ‘McKenzie Friend’.

 

The consultation report says that it will consider ‘the final three recommendations’. It thereby rejects one of the more radical, and important, recommendations of the Hickinbottom report: that its recommendations should apply equally to civil proceedings as to administrative tribunals. The consultation paper rejects tribunal representation (where ‘non-lawyer representation is the norm’) as follows (at §3.4):

 

There is no evidence to suggest that would be or otherwise desirable. Or it would take the form of liberalising the approach to representation in the courts to bring it in line with the tribunals-based approach. There is no evidence that, what would in effect be, a wholesale removal of restrictions on rights of audience in the courts is beneficial or desirable.

 

And that is that: an essential line of inquiry and wide field of comparison for the subject – fully considered by Hickinbottom – is thus disposed of.

 

Reform proposals

 

Under the heading ‘reform proposals’ the consultation paper proceeds to consider and seek responses on the following (broadly following the last three of what it sees as Hickinbottom’s recommendations):

 

  • Finding another term for ‘McKenzie friend’ – ‘court supporter’ is preferred by the consultation paper (the Hickinbottom preferred ‘lay assistant’ (Part 8) is not considered);
  • Replacing the existing case law on McKenzie friend with ‘codification and practice guidance’ revision (though the paper does not state what the status of such codification should be);
  • That notice should be given to the court and to parties where a McKenzie friend is to be instructed;
  • There should be a plain language guide setting out what McKenzie friends can and cannot do, mostly so that litigants in person are properly informed as to their role.
  • That fee recovery should be prohibited – though, again, the consultation does not say what the powers to do this are.

 

These will be the main intended areas of consultation.

 

The Hickinbottom report

 

The title to the Hickinbottom report makes it clear that its main object is to see issues, including of representation, from the point of view of litigants in person (LiP), and their place in the post Legal Aid Sentencing and Punishment of Offenders Act 2012 civil justice system (Judicial Working Group on Litigants in Person: report (July 2013); and see review at  ‘Justice for the litigant in person’ 2013 Family Law, David Burrows http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub=FAMILYpa&lang=en#addHistory=true&filename=Family_FLJONLINE_FLJ_2013_09_44.dita.xml&docid=Family_FLJONLINE_FLJ_2013_09_44&inner_id=&tid=&query=&scope=&resource=&toc=false&eventType=lcContent.loadDocFamily_FLJONLINE_FLJ_2013_09_44 ). The report looks at the issues from the point of view of the LiP, and shows a real appreciation of the problems they face. It is not designed only for the judges who must deal with LIP cases. It starts from the proposition that ‘providing access to justice for litigants in person’ within a system designed on the assumption that the majority of parties are legally represented ‘poses … unique challenges for the judiciary’ (§2.5); and it works its way to a series of recommendations based around this proposition.

 

On McKenzie friends, Part 6 of the report considers their varied roles in civil litigation. It sees three types of McKenzie friend (§6.12): those who attend to give moral support; those who attend court as advocate; and those who conduct the claim in full. Each have a role, says the report; but the role of ‘lay assistants’ and terminology applicable to them must be clarified and regularised by rule or practice direction (§6.29). Consideration should also be given to what should happen where a McKenzie friend may be said to have a conflict of interest: in a family case the ‘friend’ has received confidences from both parties; or has received them from one, but then turns up in court ‘acting’ for the other spouse or partner. Procedures must cover this point.

 

It is perhaps worth looking in full at two of the report’s paragraphs summarised by the consultation (at §3.3: see above), since these give the real flavour of what Hickinbottom recommended:

 

[6.22] The Group recommends that the Judicial Office considers, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants. That review should have as its objective the issuing of further guidance – if possible, covering both courts and tribunals – that focuses on the overriding objective of dealing with cases justly and at proportionate cost, and seeks to maximise the positive benefits that lay assistants can provide to the effective administration of justice, whilst ensuring that the possible negative effects are also addressed. The Group considers that, where lay representation is allowed for a particular case, then it is vital that all are fully aware of the role the representative is playing, and the scope and restrictions on that role….

[6.23] More specifically, the Group recommends consideration of the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing: i) the exercise of the right to reasonable assistance; ii) the right to conduct litigation; and iii) the right to exercise rights of audience31. Whether by way of Practice Direction or rule or both, in the latter two cases, such provision could provide guidance as to how the court’s inherent jurisdiction to grant such rights, which is preserved by the Legal Services Act 2007, should be exercised. Such Practice Direction or rule could helpfully replace, revise or codify the present case law authorities.

 

And on ‘lay assistants’ (the preferred term for McKenzie friends) the report (in its conclusions in Part 8) recommended:

 

(viii) The Judicial Office should consider, urgently, rationalising the historic differences between practice in the court system and practice in tribunals, as part of a wider review of lay assistants.

(ix) The Judicial Office should consider, urgently, the merits of introducing into the CPR and FPR, as has recently been introduced in Scotland, rules governing:

  1. i) the exercise of the right to reasonable assistance;
  2. ii) the right to conduct litigation; and

iii) the right to exercise rights of audience.

(x) The Head of Civil Justice and Heads of Division should consider, urgently, the terminology that should be used, including whether the term “McKenzie Friend” continues to be useful.

 

Terms like ‘cases justly’ and at ‘proportionate cost’; ‘rights to reasonable assistance’ (my emphasis), ‘to conduct litigation’ and ‘to exercise rights of audience’ all come through from these recommendations. Ideas and recommendations such as these are absent from the summary in the consultation paper.

 

Looking through the right end of the telescope

 

The Hickinbottom report looks through the correct end of the telescope: at what are the needs of the LiP in the civil and family justice system and how can these be dealt with in a way which is fair to all/both parties and to the court system. The McKenzie friend is but a part of this. The consultation report looks only at this aspect; and not from the point of view either of the LiP (who seeks the help, and may be prepared to pay) or from the point of view of the lay representative, who may be sued for what s/he does.

 

The consultation makes not reference to regulation and training of these representative; of what their liability might be in damages for negligence to their own clients, and for wasted or disallowed costs (akin to Senior Courts Act 1981 s 51(6) and (7) for legal representatives); or what their duties are to the courts.

 

Surely the priorities for a scheme must recognise the real needs of the system (see the comments eg in Gregory v Turner above); and to recognise that these must be regulated. What is meant by a ‘reserved legal activity’ and other forms of ‘legal activity’ are defined by Legal Services Act 2007 s 12, and who may carry them out by s 13. That is surely a starting point – a framework – for reform in this area. That must reflect what help can be provided to the court; who may or should pay (including for insurance); and it must recognise (as Hickinbottom is very concerned to do) fairness to other parties who are not acting in person or assisted by a McKenzie friend.

 

And finally the consultation must face the reality of the Lord Chief Justice’s comment at the beginning of this article. The English system ‘of justice has become unaffordable to most’; and that ‘there has been a considerable increase of litigants in person for whom our current court system is not really designed’. To what extent could a correctly and fairly regulated system for lay representation do this?

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SETTING ASIDE A MATRIMONIAL FINANCE ARBITRAL AWARD

‘Limited corrective jurisdiction’ of the High Court

 

In DB v DLJ [2016] EWHC 324 (Fam) (http://www.bailii.org/ew/cases/EWHC/Fam/2016/324.html), Mostyn J considers the powers of the family courts’ to set aside a matrimonial financial arbitral award; and in doing so he reviews the powers of the court to make an order in the terms of the award.

 

The husband had applied to the court for the wife to show cause why an award should not be made a final order (S v S [2014] EWHC 7 (Fam), Sir James Munby P. The wife asked the court to set aside the award because of what she asked Mostyn J to find was a mistake or unforeseen event – namely that a Portuguese property which she retained as part of the award was likely to be worth much less (on her case) than it was thought to have been when the arbitrator’s award was made.

 

The issue raised by the wife related to whether the court could set aside an arbitral award. Application had not been made by her for appeal or setting aside under Arbitration Act 1996. She applied in response to the husband’s application. However, in preparation for disposing of the set aside issue, Mostyn J sets out a summary of the ‘limited corrective jurisdiction’ of the court in relation to arbitral awards (§§4-21); and he concludes that in his view any application to set aside should be before a High Court judge (§90).

 

Of the jurisdiction of the family courts to set aside awards: Mostyn J aligns arbitral awards firmly with court orders when it comes to applications to set aside:

 

[28] … If following an arbitral award evidence emerges which would, if the award had been in an order of the court entitle the court to set aside its order on the grounds of mistake or supervening event, then the court is entitled to refuse to incorporate the arbitral award in its order and instead to make a different order reflecting the new evidence. Outside the heads of correction, challenge or appeal within the 1996 Act these are, in my judgment, the only realistically available grounds of resistance to an incorporating order…

 

Mostyn J summarises the grounds for set aside and Barder supervening events as follows:

 

[14] The traditional grounds for challenging a financial remedy award in family proceedings are mistake, fraud, non-disclosure and supervening event. Non-disclosure can be deliberate or innocent (see the recent decision of the Supreme Court in Sharland v Sharland [2015] UKSC 60 at [30] – [32]). Deliberate non-disclosure is a species of fraud. Innocent non-disclosure is a species of mistake. Therefore, in essence, there are but three grounds of challenge in family proceedings namely mistake, fraud and supervening event.

 

Set aside jurisdiction of the family courts

 

He goes on to explain fully the set aside and Barder jurisdiction bases for setting aside and for granting leave to appeal, respectively (§§31-57). He concludes on the two jurisdictions:

 

[54] … the crucial distinction between a mistake case and a true Barder case is that in the former the relevant facts will exist at the time of the order, but will be unknown; while in the latter, the relevant facts will arise after the order

 

The Barder jurisdiction has been developed since 1988, but the first part of this definition accords with the classic explanation (per Wallington J (sitting with Lord Merriman P in the Probate, Divorce and Admiralty Divisional Court) in Peek v Peek [1948] P 46) of the distinction between an appeal and an application to set aside:

 

… if a party to a motion comes to this court and, either expressly or by necessary implication, alleges that the judge who heard the case to which the motion relates made such a mistake or error as resulted in a wrong conclusion, then the matter is not one for this court but is one that must go to the Court of Appeal in the ordinary way. On the other hand, in a case where the applicant on the motion comes to this court and says, in effect, e.g., “There was no error on the part of the court below in dealing with the material then before it, or any other error of the court, but [information was not seen by the judge which was available and] very material — indeed vital — … affecting the real case between the parties, it seems to me to be plain that this court has both the jurisdiction and the duty to deal with it.

 

Ball ‘bounced the wrong way’

 

The problem for the wife in DB v DLJ was that an award had been made on the assumption that Portuguese property she was to keep was worth £375,797; but because of planning difficulties which arose very soon after the award the property – she said – was worth only £152,306. In Judge v Judge [2008] EWCA Civ 1458, [2009] 1 FLR 1287 (considered by Mostyn J at §51) a state of affairs developed since the date of the award (analogous for present purposes with a court order in set aside proceedings). The figures were much more substantial in Judge, but in both cases they related to known, but unquantified, assets (or liabilities in the case of Judge).

 

In Judge there was a possibility of the husband having to discharge a £14.5M tax liability. The judge’s award was intended to insulate her from any liability and the court’s ward constructed accordingly. The liability turned out five years after to be £600,000. Mrs Judge applied to Coleridge J to set aside his order. Under the heading ‘Section F: Mistake’ Wilson LJ in the Court of Appeal summarised the position before the judge as follows:

 

[42]   The crux of the reasoning of Coleridge J for rejecting the assertion that his award to the wife had been vitiated by a substantial mistake is set out in the following paragraphs of his judgment under appeal:

‘57 The court (and the parties) were, in the circumstances, especially anxious to ensure that the wife’s position was as bomb-proof from later attack as possible hence the broadly drawn indemnity backed up by the indemnity fund (opposed by the husband). The whole risk arising from the liability was entirely to be assumed by the husband and the quid pro quo for that was that the husband might indeed do significantly better than the court predicted. Protecting the wife was my especial pre-occupation and concern.…

63 In this case the ball has bounced the wrong way for this wife … It might just as easily have bounced the wrong way for the husband in which event it would have had a catastrophic effect on his finances. She was completely secure, he was most insecure. That is precisely how I intended it to be.’

 

In DB v DLJ the wife sought to introduce fresh valuation evidence (for which, as Mostyn J explained, she did not have permission (§81)). Essentially Mostyn J was unpersuaded that the wife ‘with due diligence’ could not have produced evidence of the planning problems to the arbitrator. She had accepted a state of affairs which later events proved wrong. For her – like for Mrs Judge – the ball (this time on valuation) bounced the wrong way. Her case on mistake was not made out (§§86-87).