The LLS Resource

Position of briefing/update in Contents:

Chapter no.

Chapter 3

Title of chapter

Regulatory Codes and Compliance

Heading

DUTY TO THE COURT

Sub-headings

 

[1] Rules reflecting the duty to the court: solicitors

[2] Rules reflecting the duty to the court: barristers

Details of briefing(s) to insert or paragraph(s) to substitute:

Insert new sub-heading after 3.106:

[3] Litigants in person

For Appendix: Litigants in person: guidelines for lawyers (June 2015)

http://www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015/

Litigants in person

[3.106/1]

In June 2015 the Bar Council, CILEx and the Law Society produced comprehensive guidelines for lawyers faced with litigants in person in proceedings.[1] Such a lawyer may have to balance his duties to the court and the administration of justice with his duty to act in the best interests of his own client.[2] For barristers the duty to the court overrides any other core duty including that to the client, to the extent that they are inconsistent.[3]  Although not made explicit, it seems likely that the duties to the court imposed by the CILEx Code of Conduct which are expressed as “primary and overriding”[4] have a similar effect. For solicitors the position is dealt with in Chapters 5 and 11 of the SRA’s Handbook. A duty to the court is combined with an obligation not to take advantage of non-clients.[5]

[3.106/2]

A lawyer is under no obligation to assist the litigant in person in running their case or in taking any step in the proceedings. To do so might amount to a breach of the lawyers duty to his or her own client.[6] A lawyer may however, be required by his duty to the court to adjust the way he deals with a case to allow the court process to accommodate a litigant in person. This goes beyond a duty not to take any unfair advantage.

[3.106/3]

In the civil and family courts there is a presumption in favour of allowing a litigant in person to be assisted by a non-lawyer who may be referred to as a “McKenzie Friend”.  There is judicial guidance for the civil and family courts on the role of McKenzie friends.[7] The courts need to balance fair treatment for litigants in person with the legislative requirement that advocates should be persons within the statutory scheme of regulation.[8] Generally any charges made by a McKenzie Friend are not recoverable from the opposing party. The Judicial Working Group on Litigants in Person reported in July 2013. The report provides useful analysis of the position of litigants in person before the courts.[9]

[1] http://www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015/

[2] Legal Services Act 2007 s 1(3)(c) and (d).

[3] BSB Handbook Rule C3 and guidance at gC1.

[4] CILEx Code of Conduct Rule 1 and CILEx Rights of Audience Conduct Rules Rule 4.

[5] Outcome 5.1,5.5 and 5.6. Outcome 11.1 and IB 11.7.

[6]Khudados v Hayden [2007] EWCA Civ 1316.

[7] http://www.judiciary.gov.uk/publications/mckenzie-friends/

[8]Graham v Eltham Conservative Club [2013] EWHC 979 (QB) at [26]-[31].

[9] https://www.judiciary.gov.uk/wp-content/uploads/JCO/Documents/Reports/lip_2013.pdf