Chapter 15 - Representation and other participants

Introduction

The adversarial system is based on the assumption that two conflicting arguments will be put before an impartial judge, who will make a decision on the merits. The general principle is that the only people who should participate in litigation are the parties: those whose presence before the Court is necessary to determine justly the issues arising, or who should be bound by any judgment given.447

This chapter considers what happens when the traditional approach of relying on the parties before the Court to present the evidence and argument required for the Court to properly decide the case may not be sufficient. In those circumstances, the involvement of non-parties may be required.

Such a situation may arise where a case involves a question of law of major public importance, with implications that go beyond the interests of the immediate parties. It may also arise where a party is representing him or herself. The system tends to assume that parties will be represented by counsel, but there is no obligation to be legally represented.

There are a variety of reasons that people may not have legal representation. They may be representing themselves by choice, or because they cannot afford legal assistance and do not qualify for legal aid. Whatever the circumstances, in a recent report released by the United Kingdom Civil Justice Council, a working group considering access to justice for self-represented litigants noted “It is hard to overstate just how difficult it can be – for the person, for the court and for other parties – when someone self-represents.”448

There is a shortage of empirical data in New Zealand about the overall volumes of self-represented litigants, and their rate of growth or decline, particularly in the civil jurisdiction,449 but concern has grown in recent years about the number of individuals appearing before the courts without legal representation, and there is certainly a perception that numbers are increasing.450

There is a tendency to view self-representation as a problem:451

The orthodox approach to self-represented litigants is that they place additional strain on an already stretched civil justice system. Judges have observed that litigants in person need to have procedural steps explained to them, their pleadings need to be untangled and the legal issues identified, they need to be carefully assisted in leading evidence, and their grasp of advocacy is generally non-existent.

At one end of the spectrum, one academic has recently suggested that the possibility of mandatory representation under certain circumstances must not be ruled out.452 At the other end, it has been suggested that we should change the way we view the civil justice system – a litigant should not be disadvantaged by a systemic bias in favour of representation because they have chosen, or have been forced, to represent themselves.453

Sometimes legal representation is expressly excluded by statute.454 In some courts, legislation expressly allows lay advocates or representatives who are not legally qualified.455 But these examples are exceptions. People representing themselves may also have assistance in court from a person known as a “McKenzie friend”,456 but that assistant cannot act as an advocate and address the court without the court’s permission.

It is beyond the scope of this Issues Paper to address the full range of issues and possible responses raised by self-representation. Our discussion focuses on situations in which the involvement of a non-party may be required in civil proceedings, (for example, because a party is self-represented, or the court requires more information, or wider interests are involved), and whether that involvement should be provided for in legislation.

High Court Rules, r 4.1; District Court Rules 2009, r 3.33.1

Civil Justice Council Access to Justice for Litigants in Person (or self-represented litigants) (November 2011) at 8.

We note that Bridgette Toy-Cronin, an Otago Law School PhD student, has been awarded an inaugural New Zealand Law Foundation Doctoral Scholarship to carry out an empirical and theoretical examination of the place of litigants in person in New Zealand’s civil courts – see University of Otago “Legal Issues Centre Scholarships for Bridgette Toy-Cronin and Warren Forster” < www.otago.ac.nz >. We also note that in 2009, the Research, Evaluation and Modelling Unit of the Ministry of Justice presented the findings of an exploratory study into self-representation undertaken in the family and summary criminal jurisdictions in New Zealand – see M Smith, E Banbury and S Ong Self-Represented Litigants: An Exploratory Study of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions (Ministry of Justice, Wellington, 2009).

M Smith, E Banbury and S Ong Self-Represented Litigants: An Exploratory Study of Litigants in Person in the New Zealand Criminal Summary and Family Jurisdictions (Ministry of Justice, Wellington, 2009) at [1.1.2].

Duncan Webb “The right not to have a lawyer” (paper presented to National Judicial College of Australia, Confidence in the Courts Conference, Canberra, 2007) at 2.

Rabeea Assy “Revisiting the Right to Self-Representation in Civil Proceedings” (2011) 30 CJQ 267.

Duncan Webb “The right not to have a lawyer” (paper presented to National Judicial College of Australia, Confidence in the Courts Conference, Canberra, 2007) at 17.

For example, generally people involved in a Disputes Tribunal hearing are not allowed to have a lawyer.

For example, in employment cases, or in the Māori Land Court with the court’s permission. The Youth Court can appoint a lay advocate to appear in support of a child or young person charged with an offence, to represent their interests or those of their family, and to ensure the court is aware of all relevant cultural matters.

After the decision in McKenzie v McKenzie [1970] 3 All ER 1034.