Friday, 13 December 2013

More training needed for HMCTS on Lay Advice

Two recent incidents highlight the lack of knowledge among both magistrates' clerks and HMCTS staff regarding litigants in person, permissions required for lay advice and the role of the McKenzie Friend.

The first being a litigant in person told they cannot seek lay advice about matters relating to proceedings without the permission of the court. In this matter, the clerk confused permission for a McKenzie Friend to accompany a litigant into court (which does require the court's permission) with a litigant seeking confidential advice (which does NOT require the court's permission).

Family Procedure Rule 12.75 covers the matter of who advice might be sought from, and the circumstances. Common sense should dictate this though. Otherwise, how would the Citizen's Advice Bureau exist, let alone the other organisations which provide lay advice.

The second matter being a litigant in person having been told by court staff to have their McKenzie Friend contact solicitors for the other side over a recent application. The McKenzie Friend is prohibited from doing this and MAY NOT act as the litigant's agent or manage their case outside of court. The Law Society practice note on litigants in person expressly states that if a solicitor receives correspondence from a McKenzie Friend, they should reply back to the litigant in person (6.1). The President's Practice Guidance on McKenzie Friends and the Legal Services Act 2007 also apply.