What does a 'litigation friend' do in an injury claim?
A litigant (claimant or defendant) has the right to represent themselves in Court, without legal representation. This approach to making a personal injury claim, however, is fraught with difficulties.
The claimant can ask if they may bring a non-legally qualified adviser with them. They can also ask for a non-legally qualified individual to represent them. These advisers and representatives, authorised by the Court, are known as litigation friends.
A litigant without a lawyer is known as a Litigant in Person (LIP). LIPs may request a litigant friend purely as a personal choice, or if hiring a lawyer would be too expensive.
A litigant friend may also be requested where the LIP might otherwise be vulnerable in a Court setting. Persons under 18, and persons under a mental health disability, would come under this category.
What does a litigation friend do?
There are two types of litigation friend: McKenzie Friend and Lay Representative. Both can offer support to LIPs, but they have different roles and capacities in Court.
Who can be a litigation friend?
You can be a litigation friend if you are the claimant's appointed deputy, or as a parent, guardian or carer by completing a certificate of suitability.
An attorney with a lasting power of attorney or enduring power of attorney can also be a litigation friend.
Rea more at gov.uk.
What does a McKenzie Friend do?
A McKenzie friend accompanies and supports the LIP during Court proceedings. The name comes from the Court of Appeal case that set out the role of the McKenzie friend most clearly, McKenzie v McKenzie [1970].
The McKenzie friend does not need to be an actual friend of the litigant, and often will have some knowledge of, or training in, the relevant area of law. Although LIPs do not have a right to a McKenzie Friend, the Court will usually allow this.
A McKenzie Friend can:
- Give moral support
- Take notes of proceedings
- Help organise case papers
- Discreetly give 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 cannot:
- Act on behalf of the LIP
- Address the Court, or question witnesses
- Act as the LIP's agent regarding the proceedings, or manage the case outside Court
A letter should be written to the Court in advance, to advise that the LIP would like the assistance of a McKenzie Friend.
What does a Lay Representative do?
A Lay Representative is a non-legally qualified individual who can accompany the LIP in Court. They can also present the case to the Court, on behalf of the LIP. The LIP must also be present in Court when they do so. A Lay Representative could be a partner, spouse, friend or colleague.
A letter should be written to the Court in advance, to advise that the case will presented by a Lay Representative.
Litigation friends for protected persons
A protected person is defined as:
- A child under 18
- A protected party (defined as a patient under the Mental Health Act 1983)
Requests for a litigation friend for a protected person have a safeguard. A completed Certificate of suitability of litigation friend form must be submitted to the Court.
This safeguarding process is to make certain the protected person receives appropriately sensitive assistance.
The cost of funding your personal injury claim
One of the most important principles of the law is that justice should be available to all. For this reason, legal aid for most legal proceedings is available to those who cannot afford a solicitor's fees.
Legal aid is no longer available for personal injury claims, but Conditional Fee Agreements ensure that claimants can still engage a lawyer without facing legal fees if the claim fails. These agreements are more commonly known as No Win, No Fee agreements.
If you are concerned that a personal injury claim may be too expensive, speak to a member of the Quittance team about our No Win, No Fee approach.
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Author:
Chris Salmon, Director
About the author
Chris Salmon is a co-founder and Director of Quittance Injury Claims. Chris has played key roles in the shaping and scaling of a number of legal services brands and is a regular commentator in the legal press.