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Lay Representation in civil cases 

 
A person who is involved in civil court proceedings without representation from a solicitor is referred to as a party litigant. A party litigant can ask the court for permission for someone to help at the hearing. The court rules allow for two types of non-solicitor assistance during the court hearing.

  1. You can ask the court for permission for someone who is not a solicitor to speak on your behalf. They are referred to as a Lay Representative.
  2. If you intend to speak for yourself at the hearing, the rules allow someone to accompany you for moral support and advice, but they aren’t allowed to speak for you.  They are referred to as a Courtroom Supporter (sometimes referred to as a Lay Supporter or 'Mckenzie Friend').

 

Lay Representative

A Lay Representative is someone who is authorised by you to help you prepare and conduct a civil legal action. Court rules allow for a Lay Representative to do anything that you would be allowed to do to prepare and conduct your own case.

You can have Lay Representation if you have started the court action or if you are responding to a claim started by someone else.

A Lay Representative is not allowed to accept any form of payment for carrying out this service.

There are rules that provide for Lay Representation in both the sheriff court and the Court of Session. Different court rules apply, depending on the type of civil action that has been raised.

Simple procedure rules – Part 2

Small claims rules – Chapter 2 and Chapter 2A 
(Cases raised before 28 November 2016 only)

Summary cause rules – Chapter 2 and Chapter 2A

Ordinary cause rules – Chapter 1A

Summary application rules – Chapter 1A

Court of Session rules - Chapter 12B

Bankruptcy Scotland Act 2016 rules – Chapter 4

 

Finding a Lay Representative

Agencies that provide advice on debt, housing, family or other issues may have employees or volunteers who are able to act as Lay Representatives in certain types of cases. Alternatively they may be able to put you in touch with another organisation that can assist.  Contact your local Citizens Advice Bureau or Shelter Housing Advice Office or a specialist support organisation to find out if there are any Lay Representatives who may be able to assist in the type of case you are involved in. 

Alternatively, you may be able to ask a friend or relative to act as your Lay Representative.

When deciding about having a Lay Representative, you need to consider whether they would be able to explain your position better than you could yourself.  Does the person you are considering have any experience of appearing in court? Are they articulate and able to speak in public?  Do they know about the circumstances of your case?   It may assist the court if you ask someone to represent you, particularly if you are very nervous, English is not your first language or there is another reason why you would find it difficult to speak at the hearing. 

You should normally be present in court when you are being represented by a Lay Representative, unless the sheriff or judge agrees that you need not attend. If you are unable to attend a hearing for any reason, you should let the court know in advance of the hearing, and ask someone to attend the hearing on your behalf.

Remember that a Lay Representative is unlikely to have any insurance cover that you could claim against, unless they are acting as a Lay Representative as part of their job and have professional insurance cover.

 

Asking for the Court’s permission for a Lay Representative to speak on your behalf

You need to complete a form to request permission for a Lay Representative to appear on your behalf. The Lay Representative needs to sign a declaration that the Court will consider when deciding whether they are suitable.

Simple procedure – Form 2A - Lay Representation Form

Small claim – Form A1 - Statement by prospective lay representative for Pursuer/Defender
(Cases raised before 28 November 2016 only)

Summary cause – Form A1 - Statement by prospective lay representative for Pursuer/Defender

Ordinary cause - From 1A.2 - Statement by prospective lay representative for Pursuer/Defender

Summary application – Form A1 - Statement by prospective lay representative for Pursuer/Defender

Court of Session – Form 12B.2 - Application by party litigant for lay representation

The sheriff or judge will grant permission if it is considered that this will be in the interests of justice.  A Lay Representative can be asked by the sheriff or judge to stop acting for you at any time if they think the person’s behaviour is unsuitable or breaches the codes of behaviour expected in the court.  This does not prevent you from seeking permission to have a different person as your Lay Representative.

 

Lay Representative for a party in a civil case who is not a person (i.e. a company)

A company (whether incorporated in the UK or elsewhere), a limited liability partnership, any other type of partnership or an unincorporated association are referred to as ‘non-natural persons’. These companies or other bodies can apply to have a Lay Representative in civil proceedings.

If you are applying as a non-natural person, you have to make your application to the court on a specific form that is contained in court rules covered in Scottish Statutory Instrument 2016 No. 243. In this form you will be asked why you cannot pay for a legal representative.

 

Courtroom Supporter

(sometimes referred to as a Lay Supporter or ‘McKenzie Friend’)

Although you may out of choice or necessity decide to speak for yourself at the hearing, you are entitled to have someone with you to help. This person is called a 'Courtroom Supporter'

This person may be a friend, relative or colleague.  They do not need to be legally qualified.

Some support organisations, such as Families Need Fathers Scotland, have trained their volunteers to act as Courtroom Supporters.

Although they won’t be able to speak on your behalf, the Courtroom Supporter may:

  • Sit beside or behind you in court
  • Provide you with moral support
  • Help you to manage your court documents and other papers
  • Take notes for you in court
  • Can quietly advise you on:
  • Points of law and procedure
  • Issues which you may wish to raise with the sheriff
  • Questions which you may wish to ask witnesses

In the sheriff court, once the case has called in court, you can ask for permission for the Courtroom Supporter to assist you at any time during the case. However in the Court of Session, you would need to make your request in the form of a motion accompanied by Form 12.A-A , signed by both you and your Courtroom Supporter.

The Courtroom Supporter must agree not to receive any payment from you, either directly or indirectly, for their assistance. Also, if their behaviour is unsuitable for the codes of behaviour expected in the court or they are in any way unsuitable, the sheriff or judge may refuse them permission to act as a Courtroom Supporter.

A Courtroom Supporter can take part in court hearings which are otherwise closed to the public, such as a child welfare hearing.

 

Where can I get legal advice?

The Scottish Courts and Tribunals Service staff are not legally qualified and therefore cannot provide you with any legal advice. If you do need legal advice, the Law Society of Scotland can provide contact details for solicitors in your area. You may also be able to obtain advice about legal aid entitlement or contact details for local solicitors from the Scottish Legal Aid Board or a Civil Legal Assistance Office.


Further information

There are other sources of relevant information, such as Money Advice Scotland and Families Need Fathers Scotland – see Useful Links above.

 

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