Power of a District Judge

fred robinson (Ataliwyd y cyfrif) made this Rhyddid Gwybodaeth request to Ministry of Justice

This request has been closed to new correspondence from the public body. Contact us if you think it ought be re-opened.

Yn disgwyl am adolygiad mewnol gan Ministry of Justice o'u triniaeth o'r cais hwn.

fred robinson (Ataliwyd y cyfrif)

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

fred robinson (Ataliwyd y cyfrif)

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

fred robinson (Ataliwyd y cyfrif)

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:
[email address] 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

fred robinson (Ataliwyd y cyfrif)

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

fred robinson (Ataliwyd y cyfrif)

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

fred robinson (Ataliwyd y cyfrif)

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

Gadawodd Mr fred robinson (Ataliwyd y cyfrif) anodiad ()

I am the applicant formally known as fred robinson.

With regard to my 19 FOI Requests dated between February 19th and March 13th 2009. I have received the following letter from The Access & Data Compliance Unit at Petty France dated July 7th 2009 regarding a DPA Subject Access Request in a letter received on June 1st 2009.

I have not made such a request as I have never address any written correspondence to the Unit at any time, the Unit states:

“Thank you for your letter of June 1st 2009 in which you made a Subject Access Request (SAR) for information held by the Ministry of Justice (MoJ) relating to yourself. Under the Data Protection Act 1998 (DPA), the MoJ must comply with the request within 40 days of its receipt, or if later within, within 40 calendar days of receipt of the necessary information such as proof of identity or the prescribed fee. The MoJ charge a fee of £10 for this service in line with the provisions of the DPA. The fee can be paid either by cheque or postal order and should be made payable to Her Majesty’s Paymaster General or HMPG. Proof of identity can be confirmed by providing a copy of a recent utility bill or a copy of the photograph page of your passport or driving licence. Unfortunately, we cannot currently process your request due to the requirements of the outstanding charge. It should also be noted that I can see several specific requests in your letter relating to information held by the Information Commission but have been unable to identify exactly what information you are requesting from the MoJ. Due to the size of the Department, it is not possible to conduct a general search of each MoJ location. I would be grateful if you could let me know which parts of the Department you wish me to conduct the searches, eg such as a specific office of the Tribunal Service or court in Her Majesty’s Court Service. Wherever possible please also supply a timescale over which you believe the information would be held.”

Mr fred robinson