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MC
KENZIE FRIEND
On
28 July 1999 Lord Woolf, the Master of the Rolls, ruled in the Court of
Appeal that to allow a litigant in person the assistance of a McKenzie
Friend may be "undesirable in the interests of justice".
Ruling in the case of Regina v Bow County Court ex parte Pelling Lord
Woolf, sitting with Lord Justice Brooke and Lord Justice Robert Walker,
decreed that a litigant in person has no right to such assistance.
Where a hearing was in public, assistance should be allowed "unless
the judge is satisfied that fairness and the interests of justice do not
require a litigant in person to have the assistance of a McKenzie
Friend".
If the hearing was in private - with the press and public excluded - the
nature of proceedings "may make it undesirable in the interests of
justice for a McKenzie Friend to assist".
A judge will now be required to give reasons for excluding a McKenzie
Friend, but acceptable reasons will include the "confidential"
nature of the proceedings or the opinion of the judge that the litigant
"had no need" of assistance.
Read the article Your Right to a Friend published in The Times (17 August
1999).
Read the Times Law Report (18 August 1999) of Lord Woolf's judgement
LEGAL
RESOURCES IN LONDON
It is always advisable to verify information such as
opening hours, especially during holiday periods, before visiting.
BRITISH LIBRARY OF POLITICAL AND ECONOMIC
SCIENCE
(London School of Economics)
25 Southampton Buildings, London, WC2A 1PH
Tel: 020 7955 7229 (General); 020 7955 6733 (Admissions)
Fax: 020 7955 7454
Web Address: www.lse.ac.uk
Underground: Holborn or Temple
Access: admission charge for individual solicitors, £10 per day, £30 per
week or £75 per month, 3m £150. Corporate membership for law firms: £350
per person pa, £500 for 5 members pa. Permits for students.
Open: Term-time: Mon - Fri 9.00-11.00, Sat - Sun 11.00 - 9.00. Reduced
hours in vacations: phone for details
Photocopying: Self-service by rechargeable cards
Stock: UK law including law reports, periodicals and texts. Official
publications and statistics collection. International and comparative law
collection. Depository for United Nations material and European
Documentation Centre.
BRITISH
LIBRARY SOCIAL POLICY INFORMATION SERVICE
Based at The British Library
96 Euston Road, London, NW1 2DB
Tel: 020 7412 7536 (Official Publications & Social Policy); 7412 7454
/ 7977 (Business); 7412 7919 (Business Patents); 7412 7901 (Foreign
Patents)
Fax: 020 7412 7761 (General)
E-mail: social-policy@bl.uk (General); patents-information@bl.uk
(Patents); business-information@bl.uk (Business)
Web Address:www.bl.uk
Underground: Kings Cross
Access: Public access by Readers Ticket: apply on-site. Reference only
Open: Mon 10-8, Tue-Thu 9.30-8.00, Fri-Sat 9.30–5.00
Photocopying: serviced and self-service copying available. Priced
DOCUMENT
SUPPLY SERVICE
Research Services: free Quick Enquiry service
and priced Research Service available. Ask for details of current rates.
Stock: National Library for science, technology, patents and business.
Includes physical sciences and technologies; trade marks, patents;
commercial and business information on companies, markets and products.
CITY
BUSINESS LIBRARY
1 Brewers' Hall Garden, London EC2V 5BX
Tel: 020 7332 1812 (General Enquiries); 020 7600 1461 (Business
Information Focus)
Fax: 020 7600 1185 (Business Information Focus)
Underground: Moorgate
Access: Public Library. Reference only
Open: Mon - Fri 9.30-5.00
Photocopying: self-service, coin operated or meter facility
Research Services: priced research service Business Information Focus.
Initial consultation free. Useful guides.
Stock: Business orientated, non-specialist legal materials for local
needs. Company annual reports and financial information, market reports
and economic reports. Law Society Library has lists of City Business
Library law reports and periodicals.
GUILDHALL
LIBRARY
Aldermanbury, London EC2P 2EJ
Tel: 020 7332 1868 / 1870 (General); 020 7332 1839 (Print Room)
Email: printedbooks.guildhall@corpoflondon.gov.uk
Web Address: www.cityof london.gov.uk
Underground: St Paul's, Bank or Moorgate
Access: Public Library. Reference only.
Open: Mon - Sat 9.30-5.00. Saturdays: enquiry service is limited and Print
Room is closed.
Photocopying: publications dated 1800-1900 must be ordered; 1900- by
self-service, coin or card operated. All copying subject to staff
approval.
Stock: Comprehensive collections of English statutes, parliamentary papers
and law reports. Current editions of Halsbury’s and Current Law but
virtually no legal textbooks. Complete run of London Gazette. Old Bailey
Sessions Papers 1684-1913. Stock Exchange Daily List (almost complete).
Complete collection of Financial Times. Print Room holds illustrations and
photographs (eg. judges and courtrooms).
THE LIBRARY
113 Chancery Lane
London WC2A 1PL
Dx 56 LOND/CHANCERY LN Library Enquiries: 0870-606 2511
Library Administration: 020 7320 5699
Library Fax: 020 7831 1687
Library E-mail: lib-enq@lawsociety.org.ukHOLBORN LIBRARY
32-38 Theobalds Road, London WC1X 8PA
Tel: 020 7413 6343 / 6345 / 6346
Underground: Holborn or Chancery Lane
Access: Public Library. Lending facilities but legal materials are
reference only.
Open: Mon & Thurs 10.00-7.00, Tues 10.00-6.00, Fri 10.00-6.00, Sat
10.00-5.00, (closed Wed & Sun)
Photocopying: self-service, coin operated
Stock: Substantial amount of basic legal reference sources incl.
Halsbury’s, Current Law, Atkin's Court Forms, White & Green Books,
Encyclopaedia of Forms and Precedents, Civil Procedure Rules. Law reports
incl. Official Series, All ER and WLR and a few journals. Basic
practitioners texts.
INSTITUTE
OF ADVANCED LEGAL STUDIES (IALS)
17 Russell Square, London WC1B 5DR
Library Enquiries: 020 7862 5790 General: 020 7862 5800
Library Fax: 020 7862 5770
Web Address: http://ials.sas.ac.uk
Underground: Russell Square
Access: admission charge. Scale of subscription charges for individual
solicitors (from £20 per day to £216.20 per annum); subscription scheme
available for law firms. Ask for details.
Open: Mon – Fri 9.30 - 7.45, Sat 10.00 - 5.15. Usually closed last two
weeks in September for stock taking.
Photocopying: Self-service, by voucher card only. An institutional Library
Subscription Scheme incorporating personal access, telephone enquiry
service and document supply service is available: ask for details.
Stock: Includes legal source materials for the USA, the Commonwealth and
Western Europe. Holds former collection of the Foreign and Commonwealth
Office Commonwealth Law Library and substantial holdings in the area of
public international law. Extensive web site links to foreign legal
materials.
WESTMINSTER
REFERENCE LIBRARY
5 St Martin's Street, London WC2H 7HP
Tel: 020 7641 4634; Information for Business service: 020 7641 4603
Fax: 020 7641 4606; Information for Business service: 020 7641 6527
Web Address: www.westminister.gov.uk
Underground: Leicester Square
Access: Public Library
Open: Mon - Fri 10.00-8.00, Sat 10.00-5.00
Photocopying: Self-service, coin operated or cashcard
Research Services: priced ‘Information for Business’ service which
includes Pepper v Hart Hansard searches
Stock: reasonable collection of legal textbooks and all major legal
reference services. Extensive holdings of UK Official Publications
including parliamentary debates, Standing Committee Official Reports and
local Statutory Instruments. European Depository Library (includes ‘S’
series), OECD holdings and statistical collections. Extensive business
information collection. The Law Society Library has further details as
well as the Westminster Union List of Periodicals (WULOP).
In addition,
specialist information may be available from the following libraries but
please check first for permission to use:-
British Institute of International and Comparative Law 020 8662 5168
Chartered Insurance Institute 020 7606 3835
Hammersmith Library 020 8576 5053
Institute of Chartered Accountants 020 7628 7070
Royal Institute of British Architects 020 7580 5533
Royal Institution of Chartered Surveyors 020 7222 7000
Supreme Court Library (litigants in person) 020 7936 6587
Other useful
telephone numbers include:-
Butterworths: Bookshop 020 7405 2500
- Sales Enquiries 020 7464 1400
- Lexis Direct 020 7464 1323
Hammicks Professional Bookshop 020 7405 5711
The Stationery Office 020 7873 0011
House of Commons Public Information Office 020 7219 4272
Sweet & Maxwell: 020 7242 2548
- Document Delivery Service 01422 888 000
Wildy's Bookshop (new and second-hand books) 020 7242 5778
JUGES
GUIDE FOR LIPs
It
is vital for all judges to realise that most unrepresented parties are
stressed and worried people operating in an alien environment in what for
them is a foreign language. They are trying to grasp concepts of law and
procedure about which they may be totally ignorant. They may well be
experiencing feelings of fear, ignorance, frustration, bewilderment and
disadvantage, especially if appearing against a represented party. The
outcome of the case may well have a profound effect and long-term
consequences upon their life.
Judges
and those who chair tribunals must always be aware of the feelings and
difficulties experienced by unrepresented parties and must be ready and
able to help them, especially if a represented party is being oppressive
or aggressive. Maintaining a balance between assisting and understanding
what the unrepresented party requires, while protecting their represented
opponent against the problems that can be caused by the unrepresented
party’s lack of legal and procedural knowledge, is the key.
Throughout
the legal system there are those who represent themselves rather than
instruct a lawyer to represent them. The reasons for this can vary. Many
do not qualify for Legal Services Commission funding, either financially
or because of the nature of their case. Some cannot afford a solicitor.
Others believe that they will be better at putting their case across. some
distrust lawyers.
In
what follows, the term “unrepresented party” encompasses those
preparing a case for trial, those conducting their own case at trial and
those wishing to enforce a judgment or to appeal.
The
disadvantages faced by unrepresented parties stem from their lack of
knowledge of the law and court procedure. They are likely to be unfamiliar
with the language and specialist vocabulary of legal proceedings, tend to
lack objectivity and emotional distance from their case and may not be
skilled in advocacy. They are unlikely to be able to undertake
cross-examination or to test the evidence of an opponent. They may be
confused about the presentation of evidence. They are unlikely to
understand the relevance of law and regulations to their own problem, or
to know how to challenge a decision that they believe to be wrong. All
these factors have an adverse effect on the preparation and the
presentation of their case. Equally, however, there are other litigants in
person who are very well able to prepare their case and indeed “play the
system for all it is worth”. This should be borne in mind.
Subject
to the law relating to vexatious litigants, everybody of full age and
capacity is entitled to be heard in person by any court or tribunal which
is concerned to adjudicate in proceedings in which that person is a party.
A party may be represented at trial by a person with rights to conduct
litigation under the Courts and Legal Services Act 1990 or may have an
assistant or friend (whether lawyer or not) assisting in presenting the
case by taking notes, quietly making suggestions or giving advice.
Increasing numbers of people are representing themselves in the civil and
family courts. The small claims procedure in the county court is designed
specifically to assist the public to pursue claims without recourse to
legal representation and has created a huge increase in the number of
unrepresented parties. The vast majority of defended civil actions in the
County Court are dealt with under this procedure and it is a sign of its
success that its jurisdiction has been increased (subject to certain
exceptions in personal injury cases) from claims of up to £1,000, to
claims of up to £5,000. With the consent of the parties cases of a
certain type can encompass substantially greater claims. Legal Services
Commission funding has never been available for small claims.
Unrepresented parties also appear with increasing frequency in the Court
of Appeal in criminal, civil and family cases. Some have represented
themselves at first instance. Others, having had lawyers appear for them
in the court below, take their own cases on appeal, often through a
withdrawal of Legal Services Commission funding after the first instance
hearing.
Those who are involved in legal proceedings without legal representation
may face a daunting range of problems of both knowledge and understanding.
English
may not be the first language of the unrepresented party and he or she may
have particular difficulties with written English. Any papers received
from the court or from the other side may need to be translated. The court
may need to adjourn in order to ensure that a mutually acceptable
translator can attend the proceedings to explain to the unrepresented
party in his or her own language what is taking place, and to assist in
the translation of evidence and submissions.
Unrepresented parties come from a variety of social and educational
backgrounds. Some may have difficulty with reading, writing and spelling.
Judges should at all times be sensitive to literacy problems and be
prepared where possible to offer short adjournments to allow a litigant
more time to read or to ask anyone accompanying the litigant to help them
to read and understand documents. Some unrepresented parties may try the
patience of a judge by their scant knowledge of law and procedure. A judge
must exercise and be seen to exercise considerable patience. He or she
should not interrupt, engage in dialogue, indicate a preliminary view or
cut short an argument in the same way that they might with a qualified
lawyer.
Unrepresented parties often believe that because they are aggrieved in
some way they automatically have a good case. Many cannot conceive of the
possibility that they may not be believed or that justice may not be on
their side. When explaining that there is no case, a judge must bear in
mind that this will come as a great disappointment to a litigant who has
waited for the day in court for a long time.
Some unrepresented parties are unaware of the explanatory leaflets
available at the court, or of the lists of advice agencies and Citizens
Advice Bureaux able to offer assistance with case preparation.
Many unrepresented parties believe that the court staff are there to give
legal advice. Under the Courts Charter court staff can only give
information on how a case may be pursued; they cannot give legal advice
under any circumstances.
Unrepresented parties in civil cases may not choose the best cause of
action or defence. For example, they may not know that if a cheque is
returned marked “refer to drawer” it is easier to sue on the cheque
than on the original invoice. Many unrepresented parties do not know about
limitation periods. Amendments to the statement of case are often
necessary.
Many
parties fail to file their own witness statements in advance of trial and
have difficulty in understanding that such a failure means that they may
not be able to give evidence at trial. The individual’s level of
knowledge should be taken into account in civil cases when deciding
whether to allow an amendment of statement of case or evidence from a
witness whose statement has not been filed in advance. A flexible approach
ought to be adopted where possible, even if this involves an adjournment.
Some of the problems which arise out of inadequate preparation in advance
of civil trials are addressed in the Protocols of the Civil Procedure
Rules. The Court Service has produced a new series of leaflets for
unrepresented parties in the light of the Rules.
Unrepresented
parties sometimes fail to understand their obligations to comply with
pre-hearing directions, and in particular directions imposing time
deadlines and “unless orders”. Many fail to read court orders or to
understand their effect. It is good practice to try to ensure that an
unrepresented party leaves a directions hearing appreciating exactly what
is required of him or her. A judge should always be ready to explain fully
the precise meaning of any particular direction or court order.
Sometimes unrepresented parties believe that if the other side has failed
to comply with directions given by the court, that in itself is evidence
in support of their own case, or that the opponent should be prevented
from defending or proceeding further. They often feel upset at what they
regard as an over-tolerant attitude by the courts to delay by solicitors.
Experience shows that unrepresented parties tend not to make sufficient
use of documentary or photographic evidence in their cases or fail to
appreciate the need for maps and plans of any location relevant to the
case. Judges have the power to order a preliminary hearing for a case
allocated to any of the three tracks. Preliminary hearings are an
opportunity for suggestions from the Bench that documentary and
photographic evidence and, if appropriate, maps and plans will be of
assistance at trial and will help facilitate the smooth progress of the
hearing.
The duty to disclose documents is frequently neglected by unrepresented
parties. Some unrepresented parties will have little or no appreciation
that they should adopt a “cards on the table” approach. Consequently
there can be delay, either because of the need to adjourn or because the
judge or the other side requires time at the hearing to read recently
disclosed documents. When a pre-trial hearing takes place, a short clear
explanation of the duty of disclosure and the test as to whether or not a
document needs to be disclosed helps both parties and the court in terms
of time saved.
Many unrepresented parties do not have access to office facilities and
have difficulties in photocopying documents, preparing bundles and typing
witness statements. They have little concept of the need for documents to
be in chronological order and paginated. Putting the case back is often
the sensible course for a judge to take, in the event of litigants coming
to court with their bundles in other than proper order.
Most unrepresented parties do not have access to legal textbooks or
libraries where such textbooks are available and may not be able to
down-load information from a legal website. A judge should never close his
or her mind to letting an individual, accompanied by a member of the court
staff, have access to the court library or to a particular book.
Many unrepresented parties do not understand the purpose or role of case
law and authorities. They are frequently very confused and troubled by the
fact that the judge or tribunal appears to be referring to someone
else’s case. A brief explanation by the judge of the doctrine of
precedent will enable an unrepresented party to appreciate what is going
on and why. A represented party’s lawyer should be told to produce any
authorities to be relied on at the outset. An unrepresented party must be
given proper opportunity to read such authorities and make submissions in
relation to them.
Many unrepresented parties do not appreciate the requirement to prove what
they say by witness evidence and accordingly do not approach witnesses in
advance or ask them to come to court. Judges are often told “All you
have to do is to ring Mr X and he will confirm what I am saying.’ When
told that that is not possible, unrepresented parties often become
aggrieved and fail to understand that it is for them to prove their case.
The need for expert evidence, even in simple cases, is also frequently
misunderstood. It must also be remembered that no party can call an expert
witness unless permission has been given by the court on allocation.
Where
unrepresented parties have not arranged for a witness of fact or an expert
witness to come to court, a judge will have a difficult decision to make
if confronted with an application to adjourn. The judge should not lose
sight of the fact that unrepresented parties may genuinely not have
realised just how important the attendance of such witnesses is. In cases
where applications to adjourn are refused, clear explanations for the
refusal should be given.
Many unrepresented parties do not appreciate the need to obtain an
adjournment order if a hearing date presents them with difficulties. It is
a common misconception that it is sufficient to write to the court without
consulting the other side, merely asking for the case to be put off to
another date, or that no more than a day’s notice of such a request is
required. On the other hand, unrepresented parties may find it difficult
to understand why cases need to be adjourned if they over-run because of
the way in which they or others have presented their cases, or why their
cases have not started at the time at which they were listed.
At the plea stage, where an unrepresented defendant pleads guilty, a judge
should take great care to ensure that the defendant understands the
elements of the offence with which he or she is charged, especially if
there is on the face of it potential evidence suggesting that the
defendant may have a defence to the charge.
EQUAL TREATMENT
_ SOME DOs AND DON'TS FOR JUGES
DOs
ascertain how parties wish to be addressed
• make a point of obtaining, well in advance if possible, precise
details of any disability or medical problem from which a person who is
appearing before you suffers
• allow more time for special arrangements, breaks etc. to accommodate
special needs at the trial
• give particular thought to the difficulties facing disabled people who
attend court – prior planning will enable their various needs to be
accommodated as far as possible. • try to put yourself in their position
– the stress of attending court should not be made worse unnecessarily,
through a failure to anticipate foreseeable problems.
• bear in mind the problems facing unrepresented parties.
• admit a child’s evidence, unless the child is incapable of giving
intelligible testimony.
• ensure that appropriate measures are taken to protect vulnerable
witnesses, for instance children, those with mental or physical
disabilities or those who are afraid or distressed.
• be understanding of people’s difficulties and needs.
DON'TS
underestimate the stress and worry faced by those
appearing in court, particularly when the ordeal is compounded by an
additional problem such as disability or having to appear without
professional representation.
• overlook the use – unconscious or otherwise – of gender-based,
racist or ‘homophobic’ stereotyping as an evidential short-cut.
• allow advocates to attempt over rigorous cross-examination of children
or other vulnerable witnesses.
• use words that imply an evaluation of the sexes, however subtle –
for instance, ‘man and wife’, ‘girl’ (unless speaking of a child),
‘businessmen’.
• use terms such as ‘mental handicap’, ‘the disabled’ – use
instead ‘learning disability’, ‘people with disabilities’.
• allow anyone to be put in a position where they face hostility or
ridicule.
WITNESSES
AND WITNESS STATEMENTS
You
will need to consider at an early point which witnesses to call.
Sometimes, you will be the only witness you need or wish to call. A court
may be prepared to take hearsay evidence into account, but will tend to
treat it as less reliable than first-hand evidence.
Having decided which issues are relevant to your case (including the
redress sought), you will need to consider calling anyone who can give
significant evidence about any aspect of the case which cannot be given by
a person who is already going to give evidence. For example, if you have
suffered ill health because of that discrimination, there may be a need to
call an expert witness.
It is sensible
to interview witnesses at an early stage, to take statements from them,
and to ask them to sign and date those statements to confirm that the
statements are correct and accurate in all respects.
In
taking a statement, it is highly desirable to avoid putting words into the
witness's mouth. Any perceived short-term advantage to your case likely to
be outweighed by the damage done if, when giving evidence at the court
hearing, the witness says something rather different.
Sometimes,
possible witnesses are very reluctant to co-operate. For example, they may
not be keen to give evidence against a work colleague. Alternatively, they
may fear being victimised for giving evidence against their employer (even
though such victimisation is unlawful). In other cases, a witness is
willing to give evidence, but does not wish to be seen to be so doing
voluntarily – a typical example might be a sexual harassment or
victimisation claim.
The
court has the power to order a person to attend a hearing as a witness. It
may make such an order out of its own volition or upon request from you as
party to the case. Before granting an application, the court may require
whoever makes the request to notify every other party of the application.
Before exercising its discretion to grant a witness order, the court will
need to be satisfied, first, that the witness can potentially give
evidence relevant to the issues in dispute. Secondly, the court will need
to be satisfied that issuing a witness order is actually necessary – so
you should invite the witness to attend before applying to the courtl for
an order.
It
is sensible to think very carefully indeed before seeking to compel a
reluctant, or possibly even hostile, witness to give evidence on your
behalf. There is no "property" in a witness – in other words,
the other side may be able to interview your witness and obtain helpful
information which could possibly undermine your whole strategy in putting
your case to the court. Even where a witness has signed a statement, what
may actually be said under cross examination before the court is, all too
often, highly unpredictable.
Thus,
although you need to call relevant witnesses, a good rule of thumb is to
call as few witnesses as are necessary in order to put your case
effectively.
LIPS
- TIPS
Dress
For Court
Coordinate your court attire with the case you are making.
If you are a working LIP, appear in conservative business attire. The
judge does not have many clues as to your real personality. Your clothes
send a signal.
If you are a stay-at-home LIP, appear in neat, conservative, respectful
attire. If at all possible, do not wear jeans or sweatshirts. Women should
avoid clothing that is revealing in any way.
Prepare Your Arguments
Some lawyers recommend memorizing the key points you want to mention and
look for a way to work those points into any response the judge asks for
from you.
Also be aware of anything in your life that could help your argument.
Gather Your Documentation
Be prepared with documents to back up your claims e.g. such as in children
custody matters:
• Any written communications between the child's teachers and you.
• Doctors' notes showing that you were the parent who accompanied the
child to the doctors' office.
• Your own schedules from past months, showing the time you were
spending with the child.
• Checks you wrote for children's activities or at the doctors' office.
• A statement from your employer, if you can comfortably obtain one,
explaining the steps you have taken at work to assure that you will have
adequate time to care for your children.
• If different school districts are involved, bring statistics about
your school demonstrating its best qualities. These may relate to number
of extra-curricular activities, performance of the sports teams, or
admissions to colleges.
Here are some tips on how to conduct yourself in
the courtroom.
• Don't get flustered. Stay calm, no matter
what your spouse or the person you are claiming against claims, or no
matter what the other lawyer says to you.
• Don't volunteer information. If you are asked questions, answer them
as honestly and simply as possible. Things you say could be twisted around
in a way that hurts you.
• Be respectful to the judge. Address the judge as "your honour,"
wait for the judge to finish speaking, and speak calmly and respectfully.
Use clean language.
• Don't interrupt anyone. If your spouse, or the person you are claiming
against, or his or her lawyer is lying, you will have an opportunity to
speak. Be patient.
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