Assisting Lay Litigants: Recent Guidance

Straitened times have led to an increase in litigation before the courts involving lay litigants or litigants in person acting without formal legal representation. Notwithstanding that such litigants may not have instructed a solicitor or barrister, they sometimes appear with assistance from a non-legally qualified third party. While limited third-party assistance is permissible, there are limits to what those third parties can do – but those limits are often overstepped. Recent practice directions across the various levels of the court (applicable from the start of October 2017) provide important guidance on the scope of such assistance.

McKenzie Friends

In conducting litigation before the courts, lay litigants have historically been allowed some assistance from non-legally qualified third parties to support them in exercising their right of access to the courts. This entitlement was recognised in the English case of McKenzie v McKenzie(1) where it was recognised that "any person, whether he be a professional man or not, may attend as a friend for either party, may take notes, may quietly make suggestions and give advice". However, such judicial recognition also circumscribed the...