High Court litigation can often tend to be costly, complex and time-consuming; against this backdrop, together with the economic crisis and its ripple effects, there has been a significant increase in the number of lay litigants – that is, parties representing themselves in court – handling their own affairs in court . Last year, there were 641 cases listed on the High Court plenary list involving lay litigants on at least one side. This represented one in 20 of cases on the list. In 2014, there were 420 such cases. One-third of cases before the Court of Appeal involve lay litigants.
Given the complexity of such cases, it is accordingly unsurprising that there has also been an increase in the number of so-called “McKenzie Friends” assisting such lay litigants. A McKenzie Friend is an individual who can provide assistance and support to a lay litigant but who is not qualified as a solicitor or barrister and who is prevented from providing legal advice or assisting in the preparation of legal documents. This prohibition is found in section 58 of the Solicitors Act 1954 (“the 1954 Act”). Mr Justice Peart recently noted that the presence of a McKenzie Friend can be of benefit to both the lay litigant and the Court and that the Court should be slow to refuse permission unless there is a “good and specified reason”.
However, in that case, where the McKenzie Friend was the lay litigants’ former solicitor, Angela Farrell who had been struck off the Roll of Solicitors, Mr. Justice Peart found that Ms. Farell had overstepped the mark, constantly interrupting the Plaintiff and hindering the interaction between the Court and the Plaintiff. To this end, the proliferation of lay litigants, often assisted by McKenzie Friends, can lend itself to a variety of difficulties, including a lack of knowledge and/or understanding of the court procedures, delays in the progression of cases and arguments being advanced that may be entirely without any legal foundation. The trend of lay litigants being assisted by “unnamed friends’”has also been queried by Mr. Justice Seamus Noonan who commented upon the misinformation that “shadowy advisers” can perpetuate . Similarly, in the Court of Appeal, Ms. Justice Mary Irvine has voiced concern and regret that some personal litigants are incurring more debt due to taking mainly incorrect advice from people with no legal qualifications and “no real understanding of the law or the rules of court”.
This can lead to the significant accrual of costs in a case for the represented parties and to the prospect of such proceedings being dismissed for want of prosecution for the lay litigants, particularly where they involve dubious challenges brought by borrowers against impaired loans or their former representatives. Whilst lay litigants may often be enticed by the promises that a McKenzie Friend might offer, it must be remembered that such individuals tend not to have any formal legal training, the extent of their experience is often overstated and they are uninsured individuals. A McKenzie Friend can certainly be of benefit but there is also the scope that they might become a hindrance where they do not properly understand the proper extent and limits of their roles. Lay litigants should also be mindful that, if they pursue cases that are devoid of legal merit or are not properly pleaded, they run the risk of having their case struck out by the court.
In one such case, the Court struck out a Plaintiff’s claim against a financial institution and described the case as “so unmeritorious indeed as to amount to an abuse of process”. There have been a number of decisions handed down to similar effect where the court has reiterated to lay litigants that it will not entertain frivolous and vexatious claims and such decisions are invariably accompanied by a significant costs order against the lay litigant concerned . It is our experience that financial institutions can sometimes seek orders of bankruptcy against particularly non-cooperative lay litigants and the Official Assignee will typically discontinue such frivolous proceedings, leaving the lay litigant in a very invidious position.
The input of some purported McKenzie Friends in cases involving financial institutions has taken on a potentially sinister turn in recent years through the purported assistance provided to lay litigants by organisations such as Integrity Ireland, the Land League West and Freemen of the Land, whose members have sought to interfere with the business of the court has also been a source of concern, leading to the Courts Service carrying out a security review. It was recently estimated that the New Land League has been in contact with 5,000 to 7,000 people around Ireland who have had difficulties with banks . The New Land League styles itself as a ‘support group that pools information and operates “a buddy system” for those in legal battles with the banks’. Protests organised by individuals affiliated to the New Land League at one point extended to taking occupation of premises of auctioneers which gave rise to injunctive proceedings.
Lay litigants should be aware that the court will not provide unlimited resources towards cases involving arguments without foundation or merit; for instance, the appropriate usage of case management will tend to be used in order to ensure that cases are handled expeditiously, as was commented upon in a recent lay litigant defamation and conspiracy action that ran for 83 days before the High Court and Supreme Court where the costs order against the lay litigant Plaintiff was estimated to be in excess of €500,000 :
‘No litigant is entitled to more than what is reasonably and necessarily required for the just disposal of a case, within the context of the other demands on court time. Whether it is an unrepresented litigant or not, the resources which the courts decide to assign to a case must depend upon the importance of the legal issues involved; the gravity of the wrong allegedly suffered by the moving or counter-claiming party; the monetary sum involved; and the public interest in the outcome of the case… Litigants should not be faced with cases that are longer or more expensive than they need to be for a fair resolution. In many instances, costs, if awarded against a losing party, may not be recovered. In that regard, putting reasonable limits on submissions, in terms of time, and allowing a measured number of hours or days for each side to litigate their case, is both right and appropriate. The calling of repetitive expert evidence may, and should, also be curtailed’.
Until recently, there was limited guidance as to the permitted conduct of McKenzie Friends in Ireland. However, following Mr. Justice Peart’s call earlier this year for guidelines to be published in respect of McKenzie Friends, a new practice direction has been published by Mr. Justice Sean Ryan, President of the Court of Appeal and Mr. Justice Peter Kelly, President of the High Court on 31 July 2017, the purpose of which is to ensure that the role of a McKenzie Friend is better understood and the limits of their role properly respected.
Practice direction CA06, which came into force on 1 October 2017, echoes section 58 of the 1954 Act in confirming that McKenzie Friends have “no independent right to provide assistance. They have no right to act as advocates or to carry out the conduct of litigation. They have no entitlement to payment for their services.” Whilst a McKenzie Friend is allowed to provide moral support, take notes and quietly give advice to the lay litigant in respect of matters relating to the conduct of the case, they are not permitted to act as the litigant’s agent or manage the litigant’s case outside of court.
Furthermore, although the court acknowledges a lay litigant’s right to reasonable assistance, only one McKenzie Friend is allowed to assist a litigant in court and the court retains the power to refuse assistance where the interests of justice so require. This allows a judge to maintain the integrity of the proceedings and ensure that fairness is being preserved at all times throughout the course of litigation.
In conclusion, whilst any given litigant has the option of handling the case themselves – one of the unenumerated rights in Article 40.3 of the Constitution is the right of access to the courts and the resources of the courts are there for litigants – any prospective lay litigant would be well minded to proceed carefully before doing so given the risks that arise and to proceed very carefully in relation to placing blind reliance upon McKenzie Friends. Such risks can often be offset through appropriate proper representation. Likewise, for prospective McKenzie Friends, in view of practice direction CA06, it is more important than ever that they are aware of the responsibilities of their role and the limitations.