Dear Sir or Madam,
will you confirm or deny that a District Judge has no duty to give reasons for setting aside a judgement.
Dear Sir or Madam,
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
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:
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."
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.
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.
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.
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.
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...
... 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.
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
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.
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.
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.
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.
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 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.
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.
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.
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)  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?
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.
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).
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  EWCA Civ 1402,  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  1 WLR 1811 and Re G (Chambers proceedings: next friend)  2 FLR 59, CA.
A differently constituted Court of Appeal in Re O (Children): Re W-R (A Child): Re W (Children)  EWCA Civ 759;  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.
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  2 FLR 839 (CA);
D v S (Rights of Audience)  2 FCR 206;  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.
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  EWCA Civ 183;  1 WLR 1149 (CA).
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.
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.
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.
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.
Dear Sir or Madam,
I HAVE RECEIVED THE FOLLOWING EMAIL ON THE WHAT DO THEY KNOW SITE FROM A MR DE KAISER:
WILL YOU CONFIRM OR DENY HE HAS "CONTACTS" IN THE MOJ TO EXERCISE THE POWER HE REFERS TO.
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.
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:
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