Lay litigants: Going it alone

 

The effects of the property crash are still being experienced within the courts system, where hundreds of insolvent individuals challenge repossession orders by banks and corporations; take advice from persons without legal training and embark on expensive and poorly-argued appeals. The outcome is rarely favourable for the lay litigants. But the sheer number of cases is causing delays in the courts.

In an attempt to deal with the situation, new directions have been drafted by senior judges to tighten up rules around people representing themselves in court. The directions, to take effect 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.The rules make clear that litigants may obtain reasonable assistance from McKenzie friends, who may provide 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. Nor do they have an entitlement to payment for their services.

It is in everybody’s interest that the courts should function in an impartial, effective and accessible fashion. That is one of the reasons lay litigants are allowed to represent themselves, in the absence of a legal team. Such an approach does not provide a level playing pitch, however, because of the legal expertise and deep pockets often available to the other side.

Access to the courts is a core democratic right. And legal charges should not become an impenetrable barrier to fair procedure. Recently, former chief justice Susan Denham asked the Bar Council to put together a panel of barristers who would advise lay litigants before the Supreme Court on a pro bono basis. The idea should be adopted more widely. Free legal advice could also be made available in the lower courts and would allow under-worked junior barristers provide advice to individuals on the law and court procedures. That would help lay litigants, while providing young barristers with much-needed court experience.

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