What is a litigation friend and when should they be appointed?
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The Court can appoint anyone to be a litigation friend, who are most commonly a:
- Family member
- Parent or guardian
- Professional advocate
As a litigant (either a Claimant or Defendant) you have the right to represent yourself in Court, and not appoint professional legal representation. Although this approach is rarely ever recommended, it is sometimes done. In such cases, the litigant in question has the right to have a non-legally qualified person with them to act as an adviser. These advisers/representatives are then appointed by the Court as ‘litigation friends’.
A litigant that doesn’t have a lawyer is known as a Litigant in Person (LIP), who can have a litigation friend out of personal choice or if the cost of hiring a lawyer to represent them is too expensive.
If the LIP is deemed vulnerable in a Court setting, for example children under the age of 18 or people with a disability, then a litigation friend may be requested to attend Court with the litigant.
What does a litigation friend do?
There are in fact two different types of litigation friend, which can play slightly different roles in Court. The two different types are McKenzie Friend and Lay Representative.
What does a McKenzie Friend do?
A McKenzie friend will accompany the LIP during Court proceedings and offer general support. The name is derived from the Court of Appeal case McKenzie v McKenzie (1970) which set out the role required.
A McKenzie Friend does not need to have known the litigant beforehand, and will usually have some knowledge or experience in the relevant area of law. LIPs do not have a right to have a McKenzie Friend present, but it is common for the Court to allow it.
The general roles of a McKenzie Friend are:
- Provide moral support
- Take detailed notes of Court proceedings
- Help to organise case papers and documents
- Offer advice on: points of law; legal procedure; issues the LIP may want to address in Court; questions the LIP may want to ask witnesses
A McKenzie Friend is not permitted to:
- Act on behalf of the LIP
- Address the Court directly, or question witnesses
- Act as the LIP’s agent with regards to the proceedings, or manage the case outside Court
If the litigant would like a McKenzie Friend to be present in Court, then a letter should be written to the Court in advance.
What does a Lay Representative do?
As the name would suggest, a Lay Representative is much like a ‘Lay Person’ i.e. a normal person. In this case it means someone who is not legally qualified who will accompany the LIP in Court. A Lay Representative can also present the case to the Court on behalf of the litigant.
Lay Representatives can be anyone, but are usually already known to the LIP i.e. partner, spouse, family member, friend, colleague etc…
If the litigant wishes to be represented by a Lay Representative then the Court needs to be informed in writing prior to the proceedings commencing.
Litigation friends for protected persons
Litigation friends can also be appointed to accompany ‘protect persons’ in Court.
A protected person is defined as:
- A child under 18
- A protected party (defined as a patient under the Mental Health Act 1983)
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Litigation friends are often needed because litigants are unable to afford the cost of making a claim – something that is becoming even more of an issue with the changes to small claims and legal aid. Here at CL Legal we will pursue your claim on a No Win No Fee basis – to find out more get in touch with us today:
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