13 07 06 LiPs ReportThis 55-page report was sent by Jeff Lampert of Help4LiPs.

Constituted by the Master of the Rolls, the Working Group was formed in December 2012 following the expected rise in the number of litigants in person (LiPs) after the Legal Aid reforms in April 2013.

The contents covers:

Foreword

  1. Introduction
  2. Overview and executive summary
  3. Issues that arise when dealing with LiPs
  4. Training and guidance for the judiciary
  5. The rules
  6. McKenzie Friends and other lay assistants
  7. Vexatious litigants
  8. Conclusions and summary of recommendations

As always in these kinds of documents, the intentions are good and honourable:-

  • Access to justice is the constitutional right of every citizen.
  • The importance of a positive approach to litigants in person.

The question is: how will this ‘positive approach’ be implemented?

  • It’s like with the Law. It doesn’t need changing. It just needs to be followed!

Here are the recommendations:

  • The Ministry of Justice (MoJ) should
  1. produce appropriate materials to inform LiPs what is required of them and what they can expect when they go to court
  2. urgently review its web-based information.
  • Training and guidance: The Judicial College should  develop
  1. regard for LiPS as a much higher proportion of court and tribunal users in their training on practice, procedure and judge-craft
  2. a ‘LiPs toolkit’
  3. a central online resource – for staff and judiciary
  4. designated civil and family judges should ensure that judges know about locally available sources of advice and assistance for LiPs.

Recommendations regarding Procedural Rules:

  • a dedicated rule to modify other rules where LiPs are involved
  • if LiPs are involved, proceedings should be conducted by way of a more inquisitorial form of process [do they mean less adversarial when the two 'opponents' have a drink together afterwards anyway?]
  • introduce a new ‘direction’ or ‘rule’ to address the needs of LiPs.

“In light of the increased significance of the right of LiPs to call on lay persons for support”:

  • historic differences between practice in the court system and tribunals needs to be reviewed
  1. the right to reasonable assistance
  2. the right to conduct litigation
  3. the right to exercise rights of audience
  4. consideration of the terminology, including whether the term “McKenzie Friend” continues to be useful. [one wonders what's wrong with that term. - Have we been too successful with our Public Interest Advocacy?]

Here’s what matters: The essentials of a claim

• The identification of a cause of action.
• The identification of the determinative issues.
  • This means who is going to decide about what?
• The identification and preparation of evidence (including, where appropriate, expert evidence) that is relevant to those issues.
  • Here the challenge is to pick and choose. What is most important?
• The preparation of documentation for the substantive hearing
  • This is the art of putting ‘bundles’ of documents together – with an index and good overviews – the real challenge for victims who are too emotionally involved.
• Conduct of the substantive hearing.
  • Thank god, the ‘right of audience’ is to be considered. The fact that it is currently up to the judge’s discretion whether to grant a McKenzie Friend audience or not is anything but ‘fair trial’ or ‘access to justice’. 
In the chapter on The role of the judge
  • the need for ‘case management’ is addressed.

But the overarching need for LiPs addressing issues with the legal profession and the judiciary is, of course, unknown to this Working Group.

However, they do note:

LiPs are more likely to complain about judges, usually on the basis, not of any substantive impropriety, but because they disagree with the findings and conclusions the judge has properly reached.
Well, how to challenge ‘properly reached’ conclusions is not part of this report…
Para 3.27 suggests:

It will thus be especially important after 1 April 2013 for judges to take the time to explain to LiPs the benefits of a good working relationship with opposing counsel, and for counsel to use their skills in helping to build those relationships.

LiPs’ Golden Rule, however, has been NOT to engage with the other party!

3.30 says:

The issue of appropriate judicial intervention and flexibility arises on

  • legal points,
  • procedural issues,
  • evidential and presentational matters.

That’s what LiPs have to learn. The Judicial College is meant to train ‘the system’. And who’s going to train the victims / LiPs?

Family proceedings address children (between partners and when Local Authorities step in) and finance (between divorcing partners).
Para 3.41 on page 16 actually mentions in a footnote that

“the best interests of children have to be ascertained (where necessary by seeking the views of the relevant children) and Article 3 of the United Nations Convention on the Rights of Children! 

  • Any guess as to why this hasn’t been happening???
  • Any suggestion as to when this might begin to be happening???
  • The “need for a child to be represented” is NOT going to address the problem!

Do note para 3.49:

it is vital that HMCTS?MoJ direct work and resources towards ensuring LiPs have the information they need before they commence proceedings, before they are required to take any particular step in proceedings, and before they appear in front of a judge.

Para 5.12 mentions the Family Justice Modernisation Programme. Is that what’s going to ensure the revolution of hearts, minds and MORALITY that Gerald Celente called for on America’s Independence Day?

On the Role of McKenzie Friends:
 
Para 6.4 says [typical for the perspective of the Court rather than victims / LiPs / McKenzie Friends]:
Refusals are rare. How come that I have been refused 2 out of 3 times?
How come that Ian Josephs was refused on one of the occasions?
Paras 6.24 – 6.26 consider the different roles:
  1. sit quietly by and assist in court
  2. having right of audience
  3. having the right to conduct litigation
  4. seeking publicity and advertising [!!!???...].

Vexatious litigants [aka starfighters or 'veteran victims': the founder of the Society of LiPs is 83 and has been in 37 years of proceedings!]

They are ‘legitimate users of the system’, but

often relentless applications, which are without any legal merit

frivolous / meritless claims.

Courts need to be vigilant; applications need to be dealt with robustly and swiftly. Action may include “totally without merit”.

87- year-old Norman Scarth writes  

‘TOTALLY WITHOUT MERIT’ are the words which are increasingly being used against the LiP by judges, acting in breach of their judicial oaths. The judiciary not only control the courts, but think they OWN them, regarding the LiP as a trespasser, to be repulsed at all costs. They use the words as a weapon to defend their fortress, ESPECIALLY against a case which might bring discredit to what purport to be ‘the Forces of Law & Order’. The new words seems to have taken over from (& work better than) the words previously used by lawyers when facing a LiP: ‘This is frivolous, vexatious, an abuse of process of law’. 

Mr Ebert and Maurice Kirk are the other ‘veteran victims’ who would be called vexatious or frivolous by people who have not been victimised themselves.