Power of a District Judge

Dear Sir or Madam,

will you confirm or deny that a District Judge has no duty to give
reasons for setting aside a judgement.

Yours faithfully,

fred robinson

Dear Sir or Madam,

FOR INFORMATION:

COVERT MEANS SECRET OR HIDDEN.

OVERT MEANS OPEN.

RECIPIENT MEANS SOMEONE WHO RECEIVES SOMETHING.

DATA SUBJECT REQUEST IS SOMETHING SENT TO THE RECIPIENT OF IT.

CONFIRM OR DENY MEANS TO GIVE A CONSTRUCTIVE ANSWER TO A REQUEST
UNDER THE FOIA.

Overt correspondence from the IC to me - 2002:

May 7 – 14 – 22

July 15

August 6 - 22

Covert correspondence to Sefton Council from the IC January 5 2004.

ON FEBRUARY 23RD 2004 IN CLAIM LV 306271 ROBINSON V SEFTON MBC,
SEFTON COUNCIL'S LEGAL DIRECTOR FILED AN UNVERIFIED DOCUMENT IN
COURT WHICH THE COURT SAYS WAS A 'DEFENCE' (THE FIRST DEFENCE)
REGARDING FRAUDULENT INSURANCE CLAIMS W215732, RR98XN AND AT01939
STATING:

"These claims are now statute barred having been raised in 1995 and
again in 1996...there is no obligation on the Council to notify
third parties that any information is unreliable or unfounded...any
claim that the Claimant may have in respect of his wall affecting
his property is now statute barred...any claim in relation to data
should be addressed to the Data Protection Registrar and is a
matter of which the court has no jurisdiction"

Covert correspondence to Sefton Council from the IC March 1st 2004.

Overt correspondence from the IC to me - 2004:

March 3

April 8 – 14

ON APRIL 14TH 2004, ADDLESHAW GODDARD, A FIRM OF SOLICITORS - NOT
ON THE COURT RECORD - SENT A "VERIFIED DEFENCE" TO THE COURT SIX
DAYS OUT OF TIME IN CLAIM 4LV11339 ROBINSON V ROYAL & SUN ALLIANCE
PLC STATING:

"ON OR ABOUT 20 FEBRUARY 1996 THE SUN ALLIANCE WAS NOTIFIED BY
ROLLIN HUDIG HALL...OF A POSSIBLE CLAIM AGAINST SEFTON BY THE
CLAIMANT [REFERENCED] W215732. SUN ALLIANCE'S REFERENCE RELATING TO
THAT CLAIM WAS AT01939...ON OR ABOUT 13 JULY 2000 THE DEFENDANT WAS
NOTIFIED BY AON CLAIMS MANAGEMENT...OF ANOTHER POSSIBLE CLAIM BY
THE CLAIMANT [WHICH] AROSE OUT OF A LETTER DATED 18 APRIL 2000
WRITTEN BY THE CLAIMANT TO MR WILLIAMS, TECHNICAL SERVICES DIRECTOR
OF SEFTON. THE DEFENDANTS REFERENCE IN RELATION TO THE SECOND CLAIM
WAS RR98XN. THE DEFENDANT FIRST WROTE TO THE CLAIMANT IN RELATION
TO THE SECOND CLAIM ON 7 SEPTEMBER 1994 STATING IT WAS NOW HANDLING
THE MATTER ON BEHALF OF SEFTON...THERE FOLLOWED VOLUMINOUS
CORRESPONDENCE BETWEEN...VARIOUS INDIVIDUALS WORKING FOR SEFTON,
VARIOUS COUNCILLORS OF SEFTON, THE ASSOCIATION OF BRITISH INSURERS,
THE LOCAL GOVERNMENT OMBUDSMAN, MERSEYSIDE POLICE, MR J BENTON MP,
THE DEPARTMENT OF THE ENVIRONMENT AND THE PRIME MINISTER. SOME OR
ALL OF THIS LATTER CORRESPONDENCE WAS COPIED TO THE DEFENDANTS."

June 4

ON JULY 19TH 2004 SEFTON COUNCILS LEGAL DIRECTOR FILED AN
UNVERIFIED 'DEFENCE' IN COURT (THE SECOND DEFENCE) STATING:

"The Claimant is a Local Authority who in 1993 were owners of the
land...between January and April 1994, demolition took place of
existing Council housing at that site culminating in redevelopment
work on the site being completed on 26th September 1994...a claim
was received from solicitors acting for the Claimant on 29th
November 1995...and a claim number was allocated being claim number
W215732...that claim is now statute barred...the Councils Technical
Services Director met with the Claimant on the 18th day of April
2000 and advised him to seek independent legal advice in relation
to his claim as at that date it was close to becoming statute
barred...the Council paid for a survey to be carried out on the
Claimants property...the Claimant has inundated the council with
correspondence to its Technical Services Department, its Insurance
Section,its Planning Department, its Chief Executive, its Legal
Department, its Data Protection Officer its Councillors and the
local member of Parliament in relation to a number of allegations
against the Council in respect of claim number W215732 which the
claimant has stated is a claim he did not make...a full
investigation has been carried out by the Information
Commission...the Information Commission have held that in respect
of Mr Robinson's access request data held by the Council is not
part of a "relevant filing system"...the Information Commission
refers to the "Durant" case on the interpretation of the Data
Protection Act 1998."

THE OVERT PURPOSE GIVEN TO ME BY THE IC WAS THAT THE ONLY PERSONAL
INFORMATION OF MINE BEING DISCUSSED WITH SEFTON COUNCIL WAS
INFORMATION FROM 1994 WHICH, THE COUNCIL TOLD THE IC, CONSISTED OF
SOME 700 DOCUMENTS.

THERE ARE AND NEVER WERE 700 DOCUMENTS PRODUCED IN 1994, I.E 14
DOCUMENTS A WEEK FOR A WORKING YEAR AND THEREFORE THEY DID NOT FALL
UNDER "DURANT" AS THEY ARE FALLACIOUS.

Yours sincerely,

fred robinson

Dear Sir or Madam,

FOR INFORMATION 

I REFER YOU TO THE "EQUAL TREATMENT BENCH BOOK"



Chapter 1.3 Unrepresented parties - Key points

The ‘litigant in
person’

Most unrepresented parties are stressed and worried,
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 have a profound effect and long-term
consequences upon
their life.

They may have agonised over whether the case was worth
 the risk to
their health and finances, and therefore feel 
passionately about
their situation.



Role of the judge



Judges and those who chair tribunals must be aware of the
feelings 
and difficulties experienced by unrepresented parties and
be ready 
and able to help them, especially if a represented party
is being
 oppressive or aggressive.

Maintaining patience and an even-handed
approach is also important
where the unrepresented party is being
 oppressive or aggressive
towards another party or its
 representative or towards the court.

The judge should, however,
 remain understanding so far as possible
as to what might lie behind
their behaviour.

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.



1.3.1 Introduction



There are a number of reasons why individuals may choose to

represent themselves rather than instruct a lawyer.

Many do not
 qualify for public funding, either financially or
because of the 
nature of their case.

Some cannot afford a solicitor and even
 distrust lawyers.

Others believe that they will be better at
 putting their own case
across.



This section aims to identify the difficulties faced (and caused)

by litigants in person before, during and after the litigation

process, and to provide guidance to judges with a view to
ensuring
that both parties receive a fair hearing where one or both
is not
represented by a lawyer.

This chapter supplements and should be
 read in conjunction with
Chapter 1.1.

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.

But on the whole those who 
exercise this personal right find that
they are operating in an
alien environment.

The courts and tribunals have not traditionally
 been receptive to
their needs.

All too often the litigant in person 
is regarded as a problem for
judges and for the court system rather 
than a person for whom the
system of civil justice exists.



Lord Woolf, Access to Justice, Interim Report June 1995



It is curious that lay litigants have been regarded … as
problems,
almost as nuisances for the court system. This has meant
that the 
focus has generally been upon the difficulties that
litigants in 
person pose for the courts rather than the other way
around.



Prof. John Baldwin, Monitoring the Rise of the Small Claims
Limit



Unrepresented parties are likely to experience feelings of
fear,
ignorance, anger, frustration and bewilderment.

They will feel at a
profound disadvantage, despite the fact that
the outcome may have a 
profound effect and long-term consequences
on their lives.

The aim
 of the judge or tribunal chair should be to ensure that
the parties 
leave with the sense that they have been listened to
and had a fair
hearing – whatever the outcome.

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 judgement or to appeal.



Disadvantages faced



The disadvantages faced by unrepresented parties stem from their

lack of knowledge of the law and court procedure.

For many
 their perception of the court environment will be based
on what 
they have seen on the television and in films.

They tend to:

be unfamiliar with the language and specialist
vocabulary of legal 
proceedings;

have little knowledge of the procedures involved and
 find it
difficult to apply the rules even if they do read them;


lack objectivity and emotional distance from their case;

be 
unskilled in advocacy and unable to undertake cross-examination
or 
test the evidence of an opponent;

be ill-informed about the 
presentation of evidence;

be unable to understand the relevance of
 law and regulations to
their own problem, or to know how to
 challenge a decision that
they believe is wrong.



All these factors have an adverse effect on the preparation
and
presentation of their case.

Equally, there are other unrepresented
parties who are familiar
with the requirements of the process.



Numbers



Increasing numbers of people are now also 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
dure and it is a sign of its
success that its jurisdiction was 
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.

Public 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
public funding after the first
 instance hearing.



Ways to help



The aim is to ensure that unrepresented parties understand what
is
going on and what is expected of them at all stages of
the
proceedings – before, during and after any attendances at
a
hearing.



This means ensuring that: the process is (or has been) explained
to
them in a manner that they can understand; they have access
to
appropriate information (e.g. the rules, practice directions
and
guidelines – whether from publications or websites); they are

informed about what is expected of them in ample time for them to

comply; wherever possible they are given sufficient time
according
to their own needs.

1.3.2

Particular areas of difficulty



Those who are involved in legal proceedings without
legal
representation may face a daunting range of problems of
both
knowledge and understanding...

...

Information



...

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.



1.3.3 Before the court appearance



Statements of case and witness statements

Unrepresented parties
may make basic errors in the preparation of
civil cases by:

failing to choose the best cause of action or
defence; overlooking
limitation periods;

not appreciating that they 
are witnesses in their own cases;

failing to file their own witness
s statements in advance of trial
(and not understanding that in
consequence they may not be able to
give evidence).



The individual’s level of knowledge should be taken into account
in
 civil cases when deciding whether to make allowances for such

failures.

A flexible approach ought to be adopted where possible,
even if
this involves an adjournment.



Some of these problems are addressed in the Protocols of the
Civil
Procedure Rules (CPR).

The Court Service has produced a new series
 of leaflets for
unrepresented parties in the light of the CPR.



Directions and court orders



Unrepresented parties often do not understand pre-hearing

directions (in particular those imposing time deadlines and
‘unless
 orders’) or the effect of court orders so:



ensure that they leave a directions hearing appreciating exactly

what is required of them;

involve them in the process of giving 
those directions (e.g.
asking them how much time they need to take
a particular step and
why) so that they realise that the directions
 relate to the
conduct of their own case;

explain fully the precise
meaning of any particular direction or
court order.



Sometimes they believe that if the other side has failed to
comply 
with such directions, that in itself is evidence in support
of 
their own case, or 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 delays by solicitors.



Documentary evidence



A common problem is lack of understanding about the use
and
application of documents and bundles.

Experience shows that
 unrepresented parties:



tend not to make sufficient use of documentary or
photographic
evidence in their cases;

fail to appreciate the need for maps and
plans of any location
relevant to the case.



Preliminary hearings represent an opportunity to give guidance on

these matters.



Disclosure of documents



The duty to disclose documents is frequently neglected by
unrepresented parties.

Some 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.



Preparing bundles



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 to take, in the
event of 
litigants coming to court with their bundles in other
than proper
order.



Producing documents



All too often unrepresented parties do not bring relevant
documents
with them to the hearing.

The court or tribunal is faced with the
comment:

‘I can produce it – it is at home’, but it is then too
 late and an
adjournment is likely to be expensive and will usually 
be
refused.



The party should have been warned in advance not only to
disclose
relevant documents to the other side but to produce the
originals 
at the hearing.



Sources of law



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.

Why not let an
 individual, accompanied by a member of the court
staff, have access
to the court library or to a particular book?



Sometimes unrepresented parties do not understand the role of
case
law and are confused by the fact that the judge or tribunal
appears
 to be referring to someone else’s case.



A brief explanation of the doctrine of precedent will enable
an
unrepresented party to appreciate what is going on and why.

A
re presented 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.



Live evidence



Judges and tribunal chairs are often told: ‘All you have to do is

to ring Mr X and he will confirm what I am saying.’

When it is
 explained that this is not possible, unrepresented
parties may 
become aggrieved and fail to understand that it is for
them to
prove their case.



They should be informed at an early stage that they must prove
what
they say by witness evidence so may need to approach witnesses
in
advance and ask them to come to court.

The need for expert evidence
 should also be explained and the fact
that no party can call an
 expert witness unless permission has
been given by the court, 
generally in advance.



When there is an application to adjourn, bear in mind
that
unrepresented parties may genuinely not have realised just
how
important the attendance of such witnesses is.

If the application
is refused a clear explanation should be
given.



Adjournments



Un represented parties may 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.

Conversely, 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.

..

...The hearing



The judge or chair of a tribunal is a facilitator of justice
and
may need to assist the unrepresented party in ways that are
not
 appropriate for a party who has employed skilled legal
advisers and 
an experienced advocate.

This may include:



attempting to elicit the extent of the understanding of that party

at the outset and giving explanations in everyday language;

making
clear in advance the difference between justice and a just
trial on
 the evidence (i.e. that the case will be decided on the
basis of
 the evidence presented and the truthfulness and accuracy
of the 
witnesses called).



Explanations by the judge



Basic conventions and rules need to be stated at the start of a

hearing.

The judge’s name and the correct mode of address should
be
clarified. Individuals present need to be introduced and their

roles explained... An unrepresented party who does not understand

something or has a problem with any aspect of the case should be

told to inform the judge immediately so that the problem can be

addressed.

The purpose of the hearing and the particular matter or
 issue on
which a decision is to be made must be clearly stated.

A
 party may take notes but the law forbids the making of
personal
tape-recordings. If the unrepresented party needs a short
break for
personal reasons, they only have to ask. The golden rule
is that 
only one person may speak at a time and each side will
have a full
opportunity to present its case.

..

...1.1.

Purpose of hearing



The purpose of a particular hearing may not be understood.
For
example, the hearing of an application to set aside a judgement
may
be thought to be one in which the full merits of the case will
be 
argued.

The procedure following a successful application should be 
clearly
explained, such as the need to serve the proceedings on
the
defendant, for a full defence to be filed and directions which
may
be given thereafter so that the parties know what is going to

happen next.



The judge’s role 

It can be hard to strike a balance in assisting
an unrepresented
 party in an adversarial system. An unrepresented
party may easily
 get the impression that the judge does not pay
sufficient attention
 to them or their case, especially if the
other side is represented
 and the judge asks the advocate on the
other side to summarise the 
issues between the parties.



Explain the judge’s role during the hearing.

If you are doing
 something which might be perceived to be unfair
or controversial in
 the mind of the unrepresented party, explain
precisely what you are
 doing and why.

Adopt to the extent necessary an inquisitorial role
 to enable the
unrepresented party fully to present their case (but
 not in such a
way as to appear to give the unrepresented party an
undue
advantage).



The real issues



Many unrepresented parties will not appreciate the real issues in

the case. For example, a litigant might come to court believing

that they are not liable under a contract because it is not in

writing, or that they can win the case upon establishing that the

defendant failed to care when the real issue in the case is
whether
or not the defendant’s negligence caused the loss.



At the start of any hearing it is vital to identify and if
possible
 establish agreement as to the issues to be tried so that
all
 parties proceed on this basis. Time spent in this way can
shorten 
the length of proceedings considerably.



Compromise



Unrepresented parties may not know how to compromise or even
that
they are allowed to speak to the other side with a view to
trying
to reach a compromise.



Tell them, particularly in civil proceedings, that the role of the

court is dispute resolution – explanations as to forms of

alternative dispute resolution (ADR) may be appropriate.

Ask them
 whether they have tried to resolve their differences by
negotiation 
and, if possible, spell out the best and worst
possible outcomes at 
the outset.

This can lead to movement away from the idea that to 
negotiate is
a sign of weakness.

Remind them to tell the court in 
advance if their case has been
settled.



Advocacy



Often unrepresented parties phrase questions wrongly and some
find
 it hard not to make a statement when they should
be
cross-examining.

Explain the difference between evidence and
 submissions, and help
them put across a point in question form.



Unrepresented parties frequently have difficulty in
understanding
 that merely because there is a different version of
events to their
 own, this does not necessarily mean that the other
side is lying.


Similarly, they may construe any suggestion from the other side

that their own version is not true as an accusation of lying.

Be 
ready to explain that this is not automatically so.



Where one party is represented, invite this advocate to make
final
submissions first, so that an unrepresented party can see how
it
 should be done.



Criminal cases

Under Article 6(3) of the European Convention of
Human Rights,
everyone charged with a criminal offence has the
right to defend
him or herself in person or through legal
assistance of his or her
 own choosing or, if he or she has not
sufficient means to pay for 
legal assistance, to be given it free
where the interests of
 justice so require.



Those who dispense with legal assistance do so, almost
always,
because they decline to accept the advice which they have
been
 given, whether as to plea or the conduct of the trial.

A firm hand 
almost always persuades such defendants that they are
much better 
advised to retain their representatives.

If this does not work the 
problem for the judge is to do with
retaining control over the 
proceedings rather than sensitive
explanation to the defendant of
 the rules of procedure and
evidence.



Cross-examination



Throughout a trial a judge must be ready to assist a defendant
in
 the conduct of their case.

This is particularly so when the
 defendant is examining or
cross-examining witnesses and giving 
evidence:



always ask the defendant whether they wish to call any witnesses;


be ready to restrain unnecessary, intimidating or humiliating

cross-examination;

be prepared to discuss the course of proceedings
with the defendant
in the absence of the jury before they embark on 
any
cross-examination;

note the statutory prohibitions on
 cross-examination by an
unrepresented defendant.



Conduct of the defence



Paragraph 5 of the Practice Direction Crown Court
(Defendant’s
Evidence) [1995] 2 Cr App R 192 puts a duty on a judge
to address 
an unrepresented defendant at the conclusion of the
evidence for
 the prosecution and in the presence of the jury as
follows:



You have heard the evidence against you. Now is the time for you
to
make your defence.

You may give evidence on oath, and be
 cross-examined like any
other witness.

If you do not give evidence
 or, having been sworn without good
cause, refuse to answer any
 question, the jury may draw such
inferences as appear proper.

That 
means they may hold it against you.

You may also call any witness
or witnesses whom you have arranged
to attend court.

Afterwards you 
may also, if you wish, address the jury by arguing
your case from 
the dock.

But you cannot at that stage give evidence.

Do you now
 intend to give evidence?



Summing up



In the course of summing up a case to a jury in which the
defendant
is unrepresented, tell the jury that it was always open
to
 defendants to represent themselves and that the jury should
bear
 in mind the difficulty for defendants in properly presenting
their 
case.

In some cases, such comments may be more appropriate at
the
outset.



Adjournments



Sometimes a defendant in a criminal case becomes an
unrepresented
party during the case either by reason of the
defendant’s
representatives withdrawing or because they are
dismissed by the
defendant.



Bear in mind that you may exercise your discretion in deciding

whether or not to grant an adjournment to enable fresh
legal
representatives to be instructed.

That decision should be based on
 what is in the interests of
justice having regard to the interests
 of the witnesses, the
public and the defendant, the stage reached
 in the trial and the
likely ability of the defendant to conduct the 
defence case
properly.

Bear in mind also the duty to warn a 
defendant against any course
that might not be in that defendant’s 
best interests, but if the
defendant decides to go on alone, allow
t hem to do so.



1.3.5 Assistance and representation



A party to civil or family proceedings may wish to be assisted by
a
‘friend’ at a hearing or even represented by a person without

rights of audience.



In a climate where legal aid is virtually unobtainable and
lawyers
disproportionately expensive, the McKenzie friend and
lay
representative make a significant contribution to access to

justice.

But reported cases tend to concentrate upon reasons why 
they
should not be allowed rather than circumstances where they may
be
of assistance to a party and the court.

The judge has to 
identify those situations where such support is
beneficial and
 distinguish circumstances where it should not be
allowed.



In addition the need for a litigation friend must be recognised
and 
this has changed with the introduction of a new mental
capacity
 jurisdiction (see further Chapter 5.4, section 5.4.3).



‘McKenzie friend’



This term refers to an assistant or friend (whether lawyer or
not) 
who assists in presenting the case by taking notes, quietly
making
suggestions or giving advice.

The role differs from that of the 
advocate in that the McKenzie
friend does not address the court or 
examine any witnesses and is
generally permitted at trials or full
 hearings although the
‘friend’ can be excluded if unsuitable (e.g.
someone who is
pursuing their own or an unsuitable agenda).

It may
be less appropriate to allow such assistance in private
(chambers) 
hearings because the judge generally then provides more
assistance 
to an unrepresented party.



A McKenzie friend may not act as the agent of the litigant in

relation to the proceedings nor manage the case outside court
(e.g.
by signing court documents).



The Court of Appeal summarised the principles in Paragon
Finance
plc v Noueiri [2001] EWCA Civ 1402, [2001] 1 WLR 2357, as
follows:



A McKenzie friend had no right to act as such: the only right
was
 that of the litigant to have reasonable assistance.



A McKenzie friend was not entitled to address the court: if he
did
 so, he would become an advocate and require the grant of a
right of
audience.



As a general rule, a litigant in person who wished to have a

McKenzie friend should be allowed to do so unless the judge was

satisfied that fairness and the interests of justice did not so

require.

However, the court could prevent a McKenzie friend from
 continuing
to act in that capacity where the assistance he gave
 impeded the
efficient administration of justice.



See also R v Bow County Court ex p Pelling [1999] 1 WLR 1811 and
Re
G (Chambers proceedings: next friend) [1999] 2 FLR 59, CA.



A differently constituted Court of Appeal in Re O (Children):
Re
W-R (A Child): Re W (Children) [2005] EWCA Civ 759; [2005] 2
FLR
967 (Thorpe LJ, Wall LJ) has since offered this guidance in
family
proceedings:



There is a strong presumption in favour of a litigant in person

being allowed the assistance of a McKenzie friend.

A request should
 not be refused without compelling reasons, even
where the
 proceedings relate to a child and are being heard in
private.

The
fact that the unrepresented party appears to be capable
of
conducting his case does not begin to outweigh the
strong
presumption in favour of allowing such assistance.

The fact that a
 proposed McKenzie friend belongs to an
organisation that promotes a 
particular cause is no reason for not
allowing him to undertake the
 role.

It was not for the litigant in person to justify his desire 
to
have a McKenzie friend but for the objecting party to rebut the

presumption in favour of allowing it.

There is no justification for 
refusing to allow a McKenzie friend
simply because it is a 
directions hearing.

Proposed McKenzie friends should not be
 excluded from the
courtroom or chambers whilst the application for
 assistance is
being made.

The proposed McKenzie friend should 
produce a short CV or
statement about himself confirming that he
 has not interest in the
case and understands his role and the duty
 of confidentiality.



In February 2005, the President of the Family Division
produced
guidance to judges in family proceedings and this is
reproduced in
 the following pages.



Rights of audience

The Courts and Legal Services Act 1990,
section 27 regulates the
 right to appear in court.

General rights of audience (advocacy 
rights) are granted to duly
qualified barristers or solicitors (and
certain others) and
employees of solicitors may appear at hearings
in ‘private’.

In addition:

 the court may refuse to hear a person (for reasons
which relate to
 him as an individual) who would otherwise have a
right of audience 
but must give reasons;

a court has discretionary power to grant an
 unqualified person a
right of audience in relation to particular 
proceedings before
that court;

a special provision is made for lay 
representatives in the small
claims track of the county court.


There is a right of audience in the presence of the party at the

hearing itself but the court may in its discretion hear a lay

representative in the absence of the party – Civil Procedure
Rules
1998, PD27 para. 3.2;

Lay Representatives (Right of Audience) Order
1999.



Lay representative



The term ‘lay representative’ relates to a person who does not

possess advocacy rights and may not even be a lawyer, but to whom

the court grants a right of audience on behalf of a party in

relation to the proceedings before that court.

The party must apply 
at the outset of a hearing if he wishes an
unqualified individual to
 be granted a right of audience, and
parties cannot consent to an
 unqualified person exercising a right
of audience – Clarkson v
Gilbert [2002] 2 FLR 839 (CA);

D v S (Rights of Audience) [1997] 2
FCR 206; [1997] 1 FLR 724
(CA).



It may, however, be appropriate to grant a right of audience on a

one-off basis (e.g. where a party is inform and cannot afford the

services of a lawyer).

The following guidance was offered by Lord 
Woolf in Clarkson v
Gilbert & ors (see above):



“Now that legal aid was not available as readily as it had been
in
the past, there were going to be situations where litigants
were
 forces to bring proceedings in person where they would need

assistance. ... litigants in person had to indicate why they
needed
some other person who was not qualified to act on their
behalf. ...
it would be for them to satisfy the court that it was
appropriate. 
If somebody’s health did not, or might no enable them
to conduct
 proceedings themselves, and if they lacked means, those
were the 
sort of circumstances that could justify a court saying
that they
 should have somebody who could act as an advocate on
their behalf.
... the objections to someone setting themselves up
as an
 unqualified advocate did not exist where a husband was
merely
 seeking to assist his wife.

”

But the party should still be present unless there is a
justifiable 
reason for absence. It may even in some circumstances
be helpful to
 a court or tribunal to recognise the representative
as Neuberger J.
pointed out in Izzo v Philip Ross & Co (2001) The
Times, 9 August
2001:



“In some circumstances common sense and experience suggests that
a
relatively inarticulate and unknowledgeable litigant prompted at

every turn results in the case taking far longer than if the
friend
 speaks directly for him. Every time the court raises a
point or 
puts a point to the litigant in person it has to be
explained to
 the litigant which often takes longer than explaining
it to his 
friend. Then the litigant has to have the answer
explained to him
 by the friend, where after the litigant passes
the answer to the
court. This is a process which self-evidently
prolongs the hearings
and, like chinese whispers, is fraught with
potential
 misunderstanding.”



Once the privilege has been granted it is difficult to withdraw it

even if the representative turns out to be unsuitable.

Problems 
arise where an unqualified person is seeking to provide
general
 advocacy services, or appears to be pursuing a separate
agenda.

In
Paragon Finance plc v Noueiri (see above) the Court of Appeal

offered guidance:



The discretion to grant rights of audience to individuals who did

not meet the stringent requirements of the 1990 Act were only to
be
exercises in exceptional circumstances and after careful

consideration.

The courts had to consider carefully whether to
 grant rights to
individuals who made a practice of seeking to 
represent otherwise
unrepresented litigants.

The person to be 
represented should normally justify the request
and be present at
 the hearing when personal interests are
involved.



Conducting litigation



There is a distinction between the conduct of litigation on behalf

of a party and advocacy at hearings.

The former relates to the 
claim form, statement of case and any
applications made during the
course of the hearing.

A ‘statement of truth’ will generally be
required to support such
documents and must be signed by the party
(or litigation friend) or
the legal representative – CPR
r.22.1(6)(a).

Special provision is made in respect of companies –
see PD 22 para
3 and r.39.6.



The Courts and Legal Services Act 1990, section 28 regulates the

right to conduct litigations.



In Paragon Finance plc v Noueiri (see above) the Court of Appeal

also offered the following guidance as to right of an
unqualified
person to conduct litigation in the courts on behalf of
a party:


the existence of such right is determined solely in accordance with

Part II of the 1990 Act; section 28(2)(c) permits a court to
grant
 an otherwise unqualified person the right to conduct
litigation in
 relation to particular proceedings and to remove
that right if it
 is being abused;

the grant of the right should be carried out 
having regard to the
same considerations as the grant of a right of 
audience.



Attorneys

The court controls its own procedures and principles
for agency do
 not apply, so a power of attorney cannot confer a
right to conduct
 litigation or of audience – Gregory v Turner, R
(on application of
 Morris) v North Somerset Council [2003] EWCA
Civ 183; [2003] 1 WLR
1149 (CA).



Official Solicitor



The Official Solicitor represents parties prior to proceedings who

are without capacity, deceased or unascertained when no other

suitable person or agency is able and willing to do so.

The purpose
is to prevent a possible denial of justice and
safeguard the
welfare, property or status of the party.



He usually becomes formally involved when appointed by the
Court,
and may act as his own solicitor, or instruct a private firm
of 
solicitors to act for him.

The vision statement of the Official
 Solicitor’s Office is:

“...

to be an organisation delivering high quality customer focused

legal services for vulnerable persons, where those services need
to
be provided by the public sector ...

”

Enquiries are frequently made by the judiciary and members of
the
legal profession and the Official Solicitor can be contacted
at:

81 Chancery Lane London WC2A 1DD DX 141150 London/Chancery
Lane WC2
Tel.: 020 7911 7127 Fax.: 020 7911 7105
Email:
enquiries@offsol.gsi.gov.uk Website:
www.offsol.demon.co.uk



Representing adults who lack capacity



An order directing the Official Solicitor to act as a
legal
representative in a civil court for an incapacitated party
will
 either be made with his prior consent or only take effect if
his 
consent is obtained.

The Official Solicitor needs to be satisfied 
that his involvement
will be consistent with the Vision Statement
 and in appropriate
cases he will also require security that his 
charges and expenses
will be met before agreeing to act.



Assisting the civil courts



The Official Solicitor may also be called on to give confidential

advice to judges, to instruct counsel to appear before a judge to

assist the court as advocate to the court, or to investigate any

matter on which the court needs a special report...

...Personal Support Unit & Citizens’ Advice Bureau



Litigants in person should also be aware of the services
provided
 by local Personal Support Units and Citizen’s Advice
Bureaux. The
PSU at the Royal Courts of Justice in London can be
contacted on
 020 7947 7701, by email at [email address] or at the
enquiry desk.


The CAB at the Royal Courts of Justice in London can be contacted

on 020 7947 6880 or at the enquiry desk.

1.3.6

After the hearing



Having won or lost the case, the unrepresented party will need
to
understand what has happened and the options available or steps

that can still be taken.



Explaining the decision



Unrepresented parties often do not understand the outcome of the

case and the reasons for it.

The following guidance is particularly
 important, therefore, if
they have lost.



Always set out clearly the reasons for the decision.

If possible,
provide an unrepresented party with a copy of the
order before
 leaving the court.

If judgement is reserved, or the order is to be
 sent on, tell the
unrepresented party approximately when they can
 expect to hear
further from the court and why there may be a delay.



Costs



Unrepresented parties are frequently unaware that they may
recover
costs, either from public funds in criminal matters or from
the 
losing side in civil cases.

If such party is entitled to costs but
 says nothing, consider
drawing the question of costs to their 
attention, without offering
advice, so that any relevant costs 
application can be made.

If an application is made that an
unrepresented party pays the
costs, an explanation must be given
 with an opportunity to argue
against this.



Appeal



Unless the unrepresented party has been wholly successful in
the
case, explain the requirement to seek leave to appeal, if

applicable. Tell the unrepresented party to consider their rights

of appeal, but explain that the court cannot give any advice as
to
the exercise of those rights.



Enforcement



An unrepresented party may be wholly unaware of the fact
that
although a civil judgement has been secured, it still has to
be 
enforced.

It is important, therefore:

to explain this in general terms at
the end of the case and to make
it clear that the court cannot
advise on enforcement, but that
 leaflets are available at the
court office; to explain the 
alternatives and that, short of
giving advice, the court staff are
 always willing to try to help
on matters of enforcement.

I HOPE THIS ASSISTS.

Yours sincerely,

fred robinson

Dear Sir or Madam,

I HAVE RECEIVED THE FOLLOWING EMAIL ON THE WHAT DO THEY KNOW SITE
FROM A MR DE KAISER:

"[text redacted]"

WILL YOU CONFIRM OR DENY HE HAS "CONTACTS" IN THE MOJ TO EXERCISE
THE POWER HE REFERS TO.

Yours sincerely,

fred robinson

Dear Sir or Madam,

Will you ALSO confirm or deny a Judge HAS THE POWER, under the CPR,
to add another party to a claim and not disclose to the claimant
the identity of that other.

Yours faithfully,

fred robinson

Yours sincerely,

fred robinson

Dear Sir or Madam,

Please pass this on to the person who conducts Freedom of
Information reviews.

I am writing to request an internal review of Ministry of Justice's
handling of my FOI request 'Power of a District Judge'.

A full history of my FOI request and all correspondence is
available on the Internet at this address:
http://www.whatdotheyknow.com/request/po...

Yours sincerely,

fred robinson