Judges tighten rules on non-legal advisers in court

Move follows concerns that such advisers are impeding courts and charging fees to litigants

The number of lay litigants reached a peak of 1,145 at the High Court in 2013. Photograph: Chris Maddaloni/Collins

The number of lay litigants reached a peak of 1,145 at the High Court in 2013. Photograph: Chris Maddaloni/Collins

 

Judges have tightened up rules around people representing themselves in court, following concerns that advisers without legal training are impeding courts and charging fees to lay litigants.

The rules, issued as practice directions by Court of Appeal president Mr Justice Seán Ryan and High Court president Mr Justice Peter Kelly, may also be seen as a move to discourage vexatious legal action by lay litigants.

The directions, to be introduced from October 1st, clarify the role and limitations of a non-legal person who provides assistance to a lay litigant, known as a McKenzie friend after a court case in 1970.

They stipulate that litigants may obtain reasonable assistance from McKenzie friends, who may provide moral support, take notes, help with papers and quietly give advice.

But they may not address the court or examine witnesses. They are not entitled to manage the case outside court by, for example, signing documents. And they have no entitlement to payment for their services.

Solicitors Act

The directions highlight the Solicitors Act 1954, which makes it a criminal offence for an unqualified person to draw or prepare a document relating to any legal proceeding, either directly or indirectly, for a fee or reward.

Their introduction comes after growing concern among the judiciary about lay litigants taking advice from people with no legal qualifications, incurring unnecessary debt and slowing down the courts system.

Following the economic crisis, the number of lay litigants, or applicants-in-person, grew dramatically in the courts.

In 2013, it reached a peak of 1,145 such plaintiffs at the High Court. And while this reduced in subsequent years, in part due to the introduction of the Insolvency Service of Ireland and new rules for debtors, it grew again last year.

In a case in June this year, Court of Appeal judge Ms Justice Mary Irvine raised concerns about some lay litigants taking mainly incorrect advice from unaccountable people with no legal qualifications and “no real understanding of the law or the rules of court”.

“Day in, day out, this court sees lay litigants pursue appeals and applications which have no prospect of success,” she said.

The court usually had little option but to award costs against such litigants, “thus pushing them further and further into debt”.

Directions welcomed

The new directions have been welcomed by legal practitioners.

Civil law barrister Andrew Robinson described them as positive and said “well-meaning McKenzie’s friends, offering support that is honestly given” were to be welcomed.

He said pseudo-legal advisers fall into two categories. One category involves lay people who come together to help each other. Some may also have an agenda that is anti-court or anti-bank or they may be trying to start a political movement, he said.

Another category involves advisers charging money. He said he knows of a handful of such people who sit in pubs in Dublin and take money from people, and assist them in drafting affidavits.

“I’m concerned some of the advice that is being given is useless and damaging,” he said.

Advice may result in lay litigants going into court and arguing using overly technical points with little merit.

“And even if the points are successful, people are still left with their indebtedness,” he said.

Ireland now has one of the world’s most liberal insolvency laws, Mr Robinson said, and debtors can go in to an insolvency agreement and may save their home and could avoid court all together.

Byron Jenkins, of The Hub Ireland, a self-help organisation set up to support homeowners in danger of losing their properties, also welcomed the new directions.

On the group’s Facebook page, he said he had been refused a McKenzie friend by a High Court judge. The new directions clarify the situation, Mr Jenkins said, and strengthen the McKenzie friend position.

“It will also stop all the bar-room pseudo lawyers that are ripping people off,” he added.