A short survey of the field for McKenzie friends and litigants in person

Litigation help in family proceedings

Litigants in person (LiP) and their helpers – McKenzie friends (MF) – have featured prominently in the legal news in the past few weeks. In the two cases considered here, it is reasonable to assume that both LiPs were denied, or had difficulties with paying for, legal representation.

In Re J (Children) [2018] EWCA Civ 115 (6 February 2018), after nearly 20 years of marriage a couple separated in September 2014. The father left their home. They had three children then aged around 16, 13 and eight. W obtained a not on notice non-molestation order in December 2014. This included that H should not communicate with her or the children. It continued till 22 December 2016 or further order. H cross-applied for contact and for his own non-molestation order. A hearing was fixed before a judge on 2 July 2015.

At that hearing H had a MF. But how much part could MF play in the proceedings? He was refused permission to address the court or to cross-examine W. It was agreed that as H was offered contact there would be no fact-finding exercise; though the injunction – still with no contact by H – stood. The children remained resistant to contact. Eventually a final hearing was fixed for 12/13 July 2016 (sic).

It was the decision at the July 2016 hearing against which H appealled to the Court of Appeal (which gave judgment three and a half years after the separation). The following grounds were included:

  • The non-molestation order was allowed to run without determination of facts.
  • The MF had been wrongly denied a right of audience.
  • No findings of fact had been made.

The outcome was a Pyrrhic victory for the father. His appeals on (1) and (3) were allowed; but no order was made by the court. The objections expressed to NYAS by the children to contact made any fresh hearing of contact, ‘simply too late and contrary to the welfare interests of the [younger two] children’ (para [99]).

McKenzie friends

The role of MFs are regulated by Practice guidance: McKenzie friends (civil and family courts): 12 July 2010 [2010] 2 FLR 962 (Lord Neuberger MR and Sir Nicholas Wall P). There is no clear law on what their role and rights of audience are. No rules or even a practice direction, still less primary legislation, explains their positon.

By contrast common law backed by European Convention 1950, Art 6 (right to a fair trial) requires that anyone coming to court should have a fair trial (and perhaps legal aid and representation: see https://dbfamilylaw.wordpress.com/2018/02/21/legal-aid-and-convention-rights-in-domestic-violence-committal-proceedings/). This is backed by Convention jurisprudence which declares that Art 6(1) entitles parties to ‘equality of arms’ which is echoed in the family proceedings overriding objective that requires that parties be ‘on an equal footing’ (FPR 2010, r 1.1(2)(c)).

The practice guidance provides a definition of what a MF is and what they may do. Cross-examination by a MF, the court in Re J was not prepared to consider. The ‘stark’ choice remains (as set out in K and H (Private Law: Public Funding) [2015] EWCA Civ 543, [2016] 1 FLR 754): either the alleged abuser cross-examines; or the judge puts the questions for him or her (Matrimonial and Family Proceedings Act 1984, s 31G(6)). The MF ground of the father’s appeal was not allowed; though his McKenzie Friend was permitted to address the Court of Appeal. Acting as ‘counsel in a trial’ said the court was an ‘altogether different issue’ ([62]).

This still leaves the question of the fairness of the way in which cases such as H’s are tried, where someone in his position does not have access to legal aid nor the means to pay for representation. This cries out for clear, fair law reform.

No quarter for litigants in person

What is relatively clear is that because you are a LiP, you cannot expect special treatment from the courts. The limited quarter for LiPs was confirmed by Supreme Court in Barton v Wright Hassall LLP [2018] UKSC 12 where Mr Barton (B) had sued solicitors who had dealt with financial relief proceedings for him. In a second action B sued the solicitors who had acted for him in the earlier claim (which he settled on his own). WH sued him for their fees and obtained summary judgment. B, as a LiP, claimed against WH in professional negligence.

B chose to serve his claim himself. WH instructed solicitors who contacted B – by email – to say they were acting and awaited service of his particulars of claim. The last day before expiry of the issued particulars (and after the primary limitation period had expired) B sent an email which included the particulars of claim. The solicitors said that email was not a permitted method of service. They would take no further steps in connection with B’s claim.

Civil Procedure Rules 1998 (CPR 1998), Pt 6 deals with service of documents. Ch 2 of Pt 6 deals with service in the jurisdiction. For family lawyers it is relevant to note that Family Procedure Rules 2010 (FPR 2010), Pt 6 Ch 3 is derived largely from CPR 1998, Pt 6 Ch 2 and deals with service of most family proceedings documents. Service is by CPR 1998, r 6.3 which includes (at r 6.3(1)(d); and see FPR 2010, r 6.23(d)) fax or email ‘in accordance with practice direction 6A’. Reference to PD6A para 4.1 shows that if email is to be permitted the solicitor to receive the documents must agree to this (and the same is the case under FPR 2010, Pt 6). But – and this is where B’s position began to unravel – the lawyers had not agreed.

That is explained as simply as I can. It is not straightforward. CPR 1998, r 6.15(1) enables a claimant to apply for service by an alternative method (see also FPR 2010, rr 6.19 and 6.35). The court may grant a r 6.15(2) application, said Lord Sumption, where:

‘[10] … In the generality of cases, the main relevant factors are likely to be (i) whether the claimant has taken reasonable steps to effect service in accordance with the rules and (ii) whether the defendant or his solicitor was aware of the contents of the claim form at the time when it expired, and… (iii) what if any prejudice the defendant would suffer by the retrospective validation of a noncompliant service of the claim form, bearing in mind what he knew about its contents. None of these factors can be regarded as decisive in themselves. The weight to be attached to them will vary with all the circumstances.’

B applied under r 6.15(2) and was refused an order by the district judge who gave him limited permission to appeal. The judge refused his appeal, as did the Court of Appeal. So too, finally, did the Supreme Court (Lord Sumption, Wilson and Carnwath) over dissent from Lord Briggs and Lady Hale.

Mr Barton as a litigant in person

The rules make no allowance for whether a person is a LiP or is represented. Lord Sumption commented on this:

‘[18] Turning to the reasons for [B’s] failure to serve in accordance with the rules, I start with [B’s] status as a litigant in person. In current circumstances any court will appreciate that litigating in person is not always a matter of choice. At a time when the availability of legal aid and conditional fee agreements have been restricted, some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court. The overriding objective requires the courts so far as practicable to enforce compliance with the rules: CPR rule 1.1(1)(f).’

Lord Briggs (with Lady Hale) would have let B in (see eg [41]): he had communicated by email already with the solicitors; the rules about email service are ‘tucked away in a practice direction’; and an otherwise authoritative handbook for litigants in person (published later than B’s error) made the same mistake as him. Both Lord Sumption and Lord Briggs urged the rules committee to look again at this part of the rules.

McKenzie Friends and litigants in person

The Brandon case makes it clear that in general LiPs cannot expect special treatment from the court when courts are dealing with questions which arise from application of the rules. That a person is a LiP will not provide a defence when it comes to relief from sanctions. This is so even though they plead that they have no means to pay for a lawyer (see Lord Sumption at [18]). And they must understand the mixture of provisions in rules supplemented by practice directions.

When it comes to attendance in court of MFs the extent to which LiPs can expect help is limited, but its definition foggy. The law – so far as it is law at all – is governed by ‘practice guidance’. How can anyone know whether they can rely on help – though that help is very patchy – and if they can, to what extent will that help (the MF) be accepted by the court. It is an obscure area which LiPs do not deserve, given that their assistance has been so extensively abbreviated by the cutting down of legal aid provision.

 

 

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