Lay Litigants and McKenzie Friends - Dublin Solicitors CPD Paper

Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Paper delivered to Dublin Solicitors CPD 3rd May 2018 Declan Harmon BL 1. Introduction Any practitioner involved in litigation will be aware of the significant growth in the numbers of lay persons conducting or defending litigation in recent years. Certain types of litigation inevitably lend themselves to greater numbers of lay litigants. Particularly high numbers of lay litigants are frequently found in possession and debt recovery matters, landlord and tenant disputes and PRTB enforcements1, employment matters (including proceedings before the Employment Appeals Tribunal) and family law matters.

Of course, litigants in person have a constitutional right of access to the courts. Lay litigants are entitled to courtesy and respect from legal practitioners, as befits our unique role in the administration of justice and in keeping with our professional codes of conduct.

However, it must be acknowledged that dealing with lay litigants presents particular challenges, both for the court and for legal professionals. As was stated by Clarke J (as he then was) in Burke v. O’Halloran2: While courts have, for good reason, always been mindful to ensure that parties who do represent themselves are not unfairly prejudiced by that fact, it nonetheless has to be recorded that proceedings where parties represent themselves frequently become difficult to handle. Understandably lay litigants do not always understand the rules of procedure or evidence or the law applicable to the case in which they are involved. Such parties frequently become frustrated when the court, even allowing some reasonable laxity in the application of those rules or that law, prevents them from doing or saying things that they wish in the course of the proceedings. These and many other factors often lead to such proceedings becoming disjointed, difficult and frequently much more lengthy than they would otherwise be.3 With the above views of Clarke J in mind, the purpose of this paper is to provide an update on developments relating to the appearance of lay litigants and McKenzie friends in court proceedings. It is hoped that it will be of practical assistance to practitioners in handling matters where one or more parties is a litigant in person.4

1

Now heard in the District Court as of the 26th February 2018.

[2009] 3 IR 809.

3 [2009] 3 IR 809, at 819.

4 The usual disclaimer that this paper is for general information and educational purposes only applies. Specific advice should be obtained where required.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL 2. Lay litigants Latitude given to lay litigants and the duties of practitioners Lay litigants will be afforded a greater degree of latitude than would be afforded to a legal practitioner in respect of the application of procedural rules, format of pleadings, the examination of witnesses and the making of submissions. 5 Where there is a lay litigant on one side of a contested matter, there is an additional responsibility on the part of practitioners to assist the court. This was stated by O’Connor J in Farrell v. Petrosyan6, where the learned judge said: The Court expects legal representatives who are on the other side of contested applications involving lay litigants to summarise the applications and to open all relevant pleadings, affidavits and exhibits while helping the Court to focus on the issues between the parties.7 There are, however, limits to the indulgence which a court will grant a litigant in person. These limits have become more clearly defined in recent years.

In Cronin v. Tanager Ltd.8, Twomey J rejected a lay litigant’s argument that his lack of representation led to him missing an earlier court hearing. The learned judge said that, were the court to accept this argument, it would give lay litigants an advantage over represented parties.

A similar determination to ensure that a lay litigant did not receive an unfair advantage over a represented party was seen in ACC Bank plc v. Kelly9. In that case, Clarke J (as he then was) cited with approval the following statements from an article by Evan Bell, who is a Master of the High Court of Northern Ireland: Fairness is the touchstone which enables justice to be done to all parties. A judge in proceedings involving a self represented litigant must balance the duty of fairness to that litigant with the rights of the other party and with the need for as speedy and efficient judicial determination as is feasible. Achieving this balance is one of the most difficult challenges a judge can face. While a trial judge's overarching responsibility is to ensure that the hearing is fair, it is not unfair to hold a self represented litigant to his choice to represent himself. A litigant who undertakes to do so in matters of complexity 5

For example, see European Fashion Products Ltd. v. Eenkhoorn [2001] IEHC 181 where Barr J stated that it would be “unreasonable to apply relevant rules of Court rigidly against (a lay litigant)”. Also see Costigan v.

Laois County Council [2000] IESC 57 where Hardiman J praised a respondent in an appeal for raising no point about the variation between the grounds in the lay litigant Appellant’s Notice of Appeal and the grounds actually urged on the hearing.

6 [2016] IEHC 522.

7 [2016] IEHC 522, at paragraph 3.

8 [2016] IEHC 803.

9 [2011] IEHC 7.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL must assume the responsibility of being ready to proceed when his case is listed. If he embarks upon the hearing of his case, he is representing to the court that he understands the subject matter sufficiently to be able to proceed. Although it may later become patently obvious that he is not, litigants who choose to represent themselves must accept the consequences of their choice. While the court will take into account the litigant's lack of experience and training, implicit in the decision to represent himself is the willingness to accept the consequences that may flow from that lack. Indeed, to hold to the contrary would mean that any party could derail proceedings by dismissing his representatives.10 Isaac Wunder orders The most powerful tool that the courts have at their disposal in balancing the rights of represented parties vis-à-vis lay litigants is the power to make an order restricting the ability of a lay litigant to institute proceedings without leave of the court. Such an order, commonly known as an Isaac Wunder order11, may be made: Where the court is satisfied that a person has habitually or persistently instituted vexatious or frivolous civil proceedings…. In assessment of the question whether the proceedings are vexatious, the court is entitled to look at the whole history of the matter and it is not confined to a consideration as to whether the pleadings disclose a cause of action. The court is entitled in the assessment of whether proceedings are vexatious to consider whether they have been brought without any reasonable ground. The court has to determine whether the proceedings being brought are being brought without any reasonable ground or have been brought habitually and persistently without reasonable ground.12 The making of an Isaac Wunder order remains exceptional in nature. However, perhaps inevitably, events of recent years have given rise to greater judicial consideration of such orders. As was said by MacMenamin J said in Tracey v. Burton13: In all legal proceedings, whether a litigant is legally represented or not, a point may be reached where the conduct of such litigation is so dilatory, or so vexatious, or proceeds in a manner which either breaks or ignores rules of procedure, or where there is such egregious misconduct either before court, or in court itself, as to raise questions as to whether the right of access to the court should be limited, or, in extreme cases, whether a case should actually be struck out…. [T]he constitutional right of access to the courts, while an important right, is not an absolute one. As a corollary of that right, a court must also protect the rights of opposing parties; the principle of finality of litigation; the resources of the courts; and the right to fair procedures which accrue to each party 10

[2010] 1 JSIJ 1, at 5.

Derived from the matter of Wunder v. Irish Hospitals Trust (1940) Ltd. Unreported, Supreme Court, 24th January 1967.

12 Per Ó Caoimh J in Riordan v. Ireland (No. 5) [2001] 4 IR 463, at 465.

13 [2016] IESC 16.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL to litigation, as well as plaintiffs. It is an injustice that defendants or plaintiffs be exposed to repeated and vexatious litigation, in which either party incurs unnecessary legal costs which may not easily be recoverable against an offending party. The public have a right to a court system which operates effectively and expeditiously in the public interest, while ensuring that justice is administered as the Constitution requires.

Finality is necessary in the interest of justice.14 Furthermore, as McDermott J, sitting in the Court of Appeal, pointed out in Superwood Holdings plc v. Sun Alliance & London Insurance plc15, the making of an Isaac Wunder order is not a denial of the right of access to the courts but instead provides a filter to ensure that a litigant is prevented from initiating any further frivolous, vexatious or scandalous proceedings.

Lay litigants and costs Lay litigants are not entitled to recover costs on the same basis as a solicitor for work undertaken prior to trial. Furthermore, a lay litigant is not entitled to taxed costs for work undertaken by a firm of solicitors at a stage when they were not on record in the proceedings.16 Directors of corporate entities appearing on behalf of the company An issue which arises from time to time is where a director or employee of an incorporated entity seeks to act on behalf of that entity in court proceedings. This is not permissible because directors or employees of a company do not have a right of audience to act qua the company in court.

A company can only be represented by a solicitor coming on record (with the solicitor then briefing counsel as appropriate). This has long been the law and was most notably affirmed in this jurisdiction by Ó Dálaigh CJ in Battle v. Irish Art Promotion Centre Ltd.17 where the learned Chief Justice held that “ … in the absence of statutory exception, a limited company cannot be represented in court proceedings by its managing director or other officer or servant.”18 This principle was most recently re-affirmed by the Supreme Court in 2013 in Coffey v. The Environmental Protection Agency19. In that case, Fennelly J held: The company, being a purely legal or notional person, cannot speak except through a representative of some kind. If it has no legal representation, it will not be represented at all. Although that is far from ideal, it represents the present law.20

14

[2016] IESC 16, at paragraph 45.

[2017] IECA 76.

16 Both propositions are per Keane CJ in Dawson v. Irish Brokers Association [2002] 2 ILRM 210.

17 [1968] IR 252.

18 [1968] IR 252, at 254.

19 [2014] 2 IR 125.

20 [2014] 2 IR 125, at 137.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL Courts will frequently adopt a ‘common sense’ approach to hearing directors in certain limited types of applications, such as the hearing of a winding up petition, to ensure no injustice is done.21 However, the general rule as laid down in Battle is binding and courts have been extremely reluctant to identify any exceptions to it. In the context of the financial climate of recent years, the statement of McKechnie J, sitting in the Court of Appeal, in Allied Irish Banks plc v. Aqua Fresh Fish Ltd.22 is most significant. The learned judge held that “Impecuniosity of a company, on its own and without more, will rarely if ever justify an exemption (to the rule in Battle).”23

3. McKenzie friends A McKenzie friend is a lay person who provides assistance to a litigant who is representing themselves in court proceedings. The name derives from the case of McKenzie v. McKenzie24, where the Court of Appeal of England and Wales found that any person may attend with an unrepresented person as a friend and may take notes and make suggestions.

The President of the High Court and the then President of the Court of Appeal issued a Practice Direction regarding McKenzie friends, which came into force on the 1st October 2017. The President of the Circuit Court issued an identical Practice Direction applicable to that court, which came into force on the same date.

The full text of the practice directions is contained in an appendix to this paper. However, in summary, the practice directions state that McKenzie friends may: (a) provide moral support for litigants; (b) take notes; (c) help with case papers; (d) quietly give advice on any aspect of the conduct of the case.

The practice directions state that a McKenzie friend may not: (a) address the court, make oral submissions or examine witnesses or otherwise conduct litigation; (b) receive any payment for their services; (c) act as the litigants’ agent in relation to the proceedings; (d) manage litigants’ cases outside court, for example, by signing court documents.

21

See, for example, the comments of Laffoy J in Re Marble and Granite Tiles Ltd. [2009] IEHC 455: The legal position … is that (a director) is not, as a matter of law, entitled to represent the company in these proceedings. However, as frequently happens on the hearing of a winding up petition when a director or a member of the company appears in Court without legal representation, he was listened to to ensure that no injustice would be perpetrated.

22 [2017] IECA 77.

23 [2017] IECA 77, at paragraph 60.

24 [1971] P 33.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL The practice directions of the 1st October 2017 have now been supplemented in the Court of Appeal and the High Court by a further practice direction dated the 24th April 2018. This practice direction states that former solicitors who have been struck off the Roll of Solicitors because of professional misconduct and former barristers who have been disbarred for professional misconduct may not act as McKenzie friends in either the Court of Appeal or the High Court.

Three points arising from the practice directions of the 1st October 2017 are worth emphasising: First, it is clear that receiving payment is incompatible with acting as a McKenzie friend. In recent years some persons and groups have marketed themselves as “professional” McKenzie friends, particularly in matters relating to mortgage and debt proceedings. However, as the word “professional” implies an entitlement to receive a professional fee, the concept of a “professional” McKenzie friend is a paradoxical one.

Secondly, McKenzie friends do not have a right of audience. Solicitors and barristers, as officers of the court, have professional duties, including a duty not to mislead the court. We are also subject to codes of professional standards and there are serious sanctions for breaches of those codes. McKenzie friends are subject to no such regulation and it is appropriate, therefore, that the court limit the categories of persons who can address it.

Thirdly, it is clear that the role of a McKenzie friend extends only to assistance in court.

Accordingly, practitioners should draw the attention of the court to instances where there are reasonable grounds to believe that a person purporting to act as a McKenzie friend has drawn up pleadings or documentation relating to legal proceedings for a fee.25 The growth in the number of lay litigants in recent years has led to a concomitant growth in the number of McKenzie friends. Some of these McKenzie friends peddle what Canadian judge Rooke ACJ has dubbed ‘Organised Pseudo-legal Commercial Arguments’26 (“OPLA”).

Sadly, given the vulnerable position of many of the litigants the purveyors of OPLA purport to assist, the supposed ‘advice’ provided frequently has the effect of actually further prejudicing the lay litigant’s position.

Noonan J, as the Judge in Charge of the High Court Judicial Review and Non-Jury lists has frequently referred to the dubious nature of the advice many litigants in person are receiving from certain individuals and groups. For example, in KBC Bank Ireland Ltd. v. Flynn27 the learned judge stated:

25

Section 58 of the Solicitors Act 1954 provides, inter alia, that it is a criminal offence for an unqualified person, as defined in the Act, to draw up a document relating to any legal proceedings for reward.

26 A term coined by the learned judge in the Alberta case of Meads v. Meads 2012 ABQB 571.

27 [2017] IEHC 79.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL It is a matter of considerable concern that (lay litigants) are being duped by anonymous parties into paying money to them on the basis of so called legal advice about their rights and entitlements. The advice apparently given by these shadowy advisers, who profess to have legal knowledge but in fact possess none, is, as recent cases concerning possession applications in this court demonstrate, to bring appeals from the Circuit Court or seek judicial review on foot of papers ineptly drafted by them, which are doomed to fail and expose the unfortunate unrepresented parties to much higher levels of costs than they should otherwise have to bear. Unlike professional lawyers, these advisers are of course unregulated and uninsured with the consequent perils of engaging with them for the unsuspecting litigant. They draft documents which espouse a grandiose form of legal speak designed to give such documents the appearance of being learned and erudite when in fact they contain little more than legal nonsense.

Parties … who find themselves in financial distress are making a bad situation considerably worse by consulting hob lawyers and unqualified persons who hold out false hope for them in situations where they would be much better advised seeking to deal with their creditors either directly or through the medium of properly qualified advisers.28 Some groups that purport to provide McKenzie friend type assistance have become positively disruptive to the court. A recent example of the disruption that can be caused by such persons was seen when a serious threat of violence was made against a judge of the Circuit Court on the Facebook page of a group which purports to provide support to persons in mortgage difficulties.29 Other examples of some of the difficulties encountered by courts in dealing with McKenzie friends in recent years can be seen in a recent judgment of Twomey J, Smith v. Ireland30. In that case, the learned judge held that a person, who had told the court he had a busy “practice” as a McKenzie friend, had impeded the administration of justice and assisted in an abuse of process. In a similar manner to how a court might make an Isaac Wunder order against a lay litigant, the learned judge made an order, pursuant to the inherent jurisdiction of the court, disqualifying the man from acting as a McKenzie friend in any further litigation without the leave of the President of the High Court.

28

[2017] IEHC 79, at paragraphs 12 and 13.

“Judge hears cases under Garda surveillance after Facebook threat” The Irish Times, 15th March 2018 http://www.irishtimes.com/news/crime-and-law/courts/circuit-court/judge-hears-cases-under-gardasurveillance-after-facebook-threat-1.3428365 30 [2017] IEHC 642.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL 4. Practical tips for interacting with lay litigants The following list is not intended to be exhaustive. However, it is hoped that it will provide ‘common sense’ advice to professional colleagues.31 •

Limit interactions with lay litigants to the greatest extent possible.

•

Where it is unavoidable or absolutely necessary to speak with a lay litigant, avoid doing so alone. Where you have instructed Counsel in a matter, attend with Counsel while any discussions are taking place outside Court.

•

To facilitate the above, attend Counsel in person for all Court appearances, where feasible.

•

Avoid being drawn into inadvertently providing legal advice to the lay litigant by, for example, explaining legal terminology. The potential for what might otherwise be considered as simply a ‘friendly word’ to be misconstrued or misrepresented is high.

•

On a related note, matters which are routinely dealt with between professional colleagues in discussions outside court (e.g. consent terms, agreement to adjournments etc.), can be misunderstood by lay litigants. Regrettably, some colleagues have reported that lay litigants and their ‘advisors’ have deliberately misrepresented routine matters in subsequent court appearances.

•

Always assume that you are being recorded in interactions that you have with lay litigants, particularly where they are accompanied by some of the unscrupulous and unqualified lay ‘advisors’ that sadly litter our courts. This may seem to verge on paranoia but many colleagues have reported instances of having conversations outside court recorded by lay litigants.

•

Make a detailed contemporaneous attendance note of any and all interactions with a lay litigant.

•

Remember that lay litigants will not necessarily appreciate the effect of ‘without prejudice’ privilege. Therefore, be cautious if and when you are proposing ‘without prejudice’ terms to a lay litigant.

•

It is advisable to send all inter partes correspondence to a lay litigant by registered post so that an affidavit of service can subsequently be prepared if necessary.

31

The author is grateful to the legal practitioner colleagues who have provided their thoughts in ‘crowd-sourcing’ this list.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL •

Be aware of services that are available to unrepresented parties in possession matters.

For example, staff from MABS and the Insolvency Service of Ireland now regularly attend in the Circuit Court and legal advice vouchers are available under the Abhaile scheme.

•

In appropriate Chancery or Non-Jury proceedings, consider making an application for Case Management pursuant to Order 63, rule 6 of the Rules of the Superior Courts.

•

Ensure that accurate and realistic estimates for durations of trial are given to the Court, especially for the purposes of ensuring compliance with the new High Court Practice Direction concerning certificates of readiness in Chancery and Non-Jury actions.32

32

Practice Direction HC75, in force since the 9th April 2018, states, inter alia, that the party who desires to certify the proceedings as ready for trial and to seek a hearing date shall give a month’s notice to the other parties. During that period the parties must consult so as to ensure accurate completion of the Certificate of Readiness, particularly insofar as the duration of the trial is concerned. A failure to provide an accurate certificate particularly concerning the duration of the trial may result in costs consequences for the parties regardless of the result of the action.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL Appendix Text of Court of Appeal Practice Direction CA07, High Court Practice Direction HC72 and Circuit Court Practice Direction CC19 – All effective from the 1st October 2017.

1. Litigants may obtain reasonable assistance from a lay person, sometimes called a “McKenzie friend”. Litigants assisted by McKenzie Friends remain litigants in person.

McKenzie Friends have no independent right to provide assistance. They have no right of audience, to act as advocates or to carry out the conduct of litigation. They have no entitlement to payment for their services.

2. In court McKenzie Friends may:(a) provide moral support for litigants; (b) take notes; (c) help with case papers, subject to paragraph 6 below; (d) quietly give advice on any aspect of the conduct of the case.

3. McKenzie Friends may not:(a) address the court, make oral submissions or examine witnesses or otherwise conduct litigation. In exceptional circumstances a court may permit a McKenzie Friend to address the court. Such circumstances will be rare; (b) receive any payment for their services; (c) act as the litigants’ agent in relation to the proceedings; (d) manage litigants’ cases outside court, for example, by signing court documents.

4. Whilst litigants may receive reasonable assistance from McKenzie Friends, the court retains the power to refuse to permit such assistance. The court may do so where it is satisfied that the interests of justice and fairness do not require the litigant to receive such assistance. Where the court permits a litigant to receive assistance from a McKenzie Friend, it may regulate the manner in which assistance is provided. It may withdraw the permission if of opinion that the administration of justice is being impeded by the McKenzie Friend.

If requested by the court a McKenzie Friend must provide his or her name, address and contact details.

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Lay Litigants and McKenzie Friends: Challenges for Legal Practitioners Dublin Solicitors CPD – 3rd May 2018 – Declan Harmon BL 5. Only one McKenzie Friend may assist a litigant in court.

6. The attention of litigants and proposed McKenzie Friends is drawn to the provisions of section 58 of the Solicitors Act 1954 as amended, which makes it a criminal offence for an unqualified person, as defined in that Act, to draw or prepare a document relating, inter alia, to any legal proceeding either directly or indirectly for or in expectation of any fee, gain or reward.

7. This Practice Direction shall come into force on the 1st October, 2017.

Text of Court of Appeal Practice Direction CA08, High Court Practice Direction HC77 – Effective from the 24th April 2018.

Former solicitors who have been struck off the Roll of Solicitors because of professional misconduct and former barristers who have been disbarred for professional misconduct may not act as McKenzie friends in either the Court of Appeal or the High Court.

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