THIS ISSUE: A friend in need? Looking at options for self-represented litigants The ins and outs of making donations ADLSI honours Justice Simon Moore LAWNEWS ISSUE 6 13 MARCH 2015 www.adls.org.nz + Courts, litigation, self-representation SELF- REPRESENTED LITIGANTS – CONTINUING THE DIALOGUE By Anthony Jackson, Barrister Self-represented litigants are a phenomenon that the courts and practitioners increasingly have to address and contend with at all levels. This article is intended to be thought-provoking and (hopefully) to continue the discussion on ADLSI hosted a dinner on Friday 6 March 2015 in honour of the Honourable Justice Simon Moore, this matter. It is not intended to provide answers, former Crown Solicitor and long-time ADLSI member and supporter. His Honour (in the centre) is pictured but readers’ feedback would be welcome! here with Andrea Manuel, his Honour Judge Gary Harrison, his Honour Judge Kevin Glubb and Chief Coroner Deborah Marshall. For more pictures from this event please turn to pages 4 and 5. Changes to representation in court Changes to legal aid, particularly for Family Court cases, and changes to the rules allowing lawyers to be present for clients have meant as it affects the rule of law. England and Wales) made it clear that he was (for example) that in many cases parents are not prepared to countenance the parents facing no longer able to have a lawyer represent them Looking further afield (to the United Kingdom), the application by the local authority without in what can be difficult cases. This means another example of a judicial viewpoint on these proper legal representation. many people will now act for themselves, in an issues can be found in the case of In the Matter of environment with which they are unlikely to be D (A Child) [2014] EWFC 39, which was a child More recently (and back in New Zealand), his familiar and often when they are at their most care case. The parents did not have sufficient Honour Judge Maude, together with barrister vulnerable and emotional – two states of mind funds to pay for legal representation and had Lynda Kearns, presented an ADLSI webinar that do not engender thoughtful and rationale been assessed as not qualifying for legal aid. The entitled “Self-Represented Persons: Problems approaches and solutions. mother had been assessed in 2012 as being “on and Solutions – Family Law” on 18 February the borderline of a mild learning disability” and 2015 (available on demand; see ADLSI’s website On 7 November 2014, the Chief Judge of the the father had a “more significant cognitive www.adls.org.nz/cpd/cpd-on-demand/). There is High Court, the Honourable Justice Helen impairment with an IQ of around 50”. A no doubt this is a hot topic. Winklemann, gave the Ethel Benjamin address psychological assessment had concluded that the on the subject of “Access to justice – who needs father lacked capacity to conduct litigation. Guidance for litigants in person lawyers?”, which considered some of these If we accept, as we must, that litigants in person issues. Frances Joychild QC, in her excellent In a very strongly-worded judgment that will are now a part of the judicial and legal landscape, article on page 3 of Law News, Issue 1 (5 resonate with us all, Sir James Munby (President February 2015), also addressed the matter as far of the Family Division of the High Court of Continued on page 2 + Courts, litigation, self-representation SELF-REPRESENTED LITIGANTS – CONTINUING THE DIALOGUE Continued from page 1 Our courts handle these challenges pragmatically. The court staff and our judges what guidance is there as to how to deal with have admirably taken on the extra task of such people? explaining to self-represented litigants the In England, the increasing number of litigants in importance of seeking legal representation and, person has led to an extensive array of guidance as far as they can, of explaining the process to from the government and the courts to the members of the public. English Bar Council. Those litigants who nonetheless opt for (or have “McKenzie Friends” no alternative to) self-representation place a burden on the courts to reiterate to them the Colleagues report an increasing number of people need to observe the practice and procedure of arriving at court with a support person. Inevitably, the courts, so as to help an individual properly if people cannot be represented by lawyers but present his or her case. feel uncomfortable without help and guidance, they will turn to other resources. However, the Ethical and professional obligations concept of a “McKenzie Friend” of old, of merely The first duty of all lawyers is to the court. Then assisting the client/litigant, is changing. we have obligations to our client. As counsel, we are forever conscious of ensuring compliance As readers may recall, the original “McKenzie Anthony Jackson with our ethical and professional obligations. Do Friend” originated from a Family Court case in we over compensate towards a self-represented London. The solicitor for the husband, Mr Jeffrey person, or, at the other end of the spectrum, Gordon (now in his 82nd year and still practising restrict contact to avoid claims of undue – he was a Principal to the author many years influence or inappropriate conduct? ago) sent a law clerk to help the client who could The original “McKenzie not afford representation. Friend” originated from a How far do we, as lawyers, advocate for a detailed review of self-represented litigants Today, the McKenzie Friend is a “job” in Family Court case in London, and the role they have in the court and ADR England, with an organisation for McKenzie where a law clerk was sent processes, and the effect on not only resources Friends (www.mckenzie-friend.org.uk/) and but the overall administration of justice? fees charged for their services. Could this be the to help a client who could future for the New Zealand courts? not afford representation. A dialogue on this topic is welcomed. The obvious concern is the quality of such Today, the McKenzie Friend Readers wishing to explore this topic further may McKenzie Friends and their ability to provide the is a “job” in England, with be interested in the following links: correct advice and assistance – and, importantly, an organisation and fees • Legal aid: www.justice.govt.nz/services/ by whom are they regulated? legal-help/legal-aid charged for their services. The challenges of self-representation • Changes to the rules allowing lawyers to Could this be the future for be present for clients: www.familylaw.org. The challenges associated with self-represented nz/__data/assets/pdf_file/0006/55680/ litigants are complex. Studies have been the New Zealand courts? Changes_to_New_Zealand_Family_Court_ undertaken in Canada, the United Kingdom, FLS52.pdf Australia and New Zealand with a particular focus on the effect of self-represented litigants • Guidance in England in relation to litigants in the justice system – even Wikipedia has a in person: https://www.gov.uk/represent- detailed page on the issue. The findings of those yourself-in-court, www.familylaw.co.uk/ studies are wide and varied, and present a real system/uploads/attachments/0000/8125/ challenge to the question of access to justice. McKenzie_Friends_Practice_Guidance_ July_2010.pdf and http://barcouncil.org. The difficulties facing self-represented litigants, • issues of confidentiality and how to uk/instructing-a-barrister/representing- and the practitioners who encounter them, are deal with prohibitions on disseminating yourself-in-court/ common features in many areas of legal practice. information; • “McKenzie Friends”: Practitioners report concerns about common www.mckenzie-friend.org.uk/; and themes such as: • understanding of the role of a McKenzie Friend; and • Studies on the effect of self-represented • understanding the overall court process; • how the self-represented litigant conducts litigants in the justice system: www. • the adequacy of filed evidence and him or herself and how practitioners justice.govt.nz/publications/publications- pleadings; intereact with such a person. archived/2009/self-represented-litigants. LN Editor: Lisa Clark All mail for the editorial department to: available by subscription to non-members Auckland District Law Society Inc., Level for $130 plus GST per year. If you wish to Publisher: Auckland District Law Society Inc. 4, Chancery Chambers, 2 Chancery Street, subscribe please email reception@adls. LAW NEWS is an official Auckland 1010. PO Box 58, Shortland org.nz publication of Auckland District Editorial and contributor enquiries: Street, DX CP24001, Auckland 1140. Lisa Clark, phone (09) 303 5270 or email www.adls.org.nz ©COPYRIGHT. Material from this newsletter must Law Society Inc. (ADLSI). [email protected] not be reproduced in whole or part without Law News is published weekly (with permission. Law News is published by Advertising enquiries: Chris Merlini, the exception of a small period over the Auckland District Law Society Inc., 2 Chancery phone 021 371 302 or Christmas holiday break) and is available Street, Auckland. email [email protected] free of charge to members of ADLSI, and PAGE 2 - ISSUE 6, 13 MARCH 2015 + Charities law, tax law Demystifying donee status By Craig Fisher, Chairman at RSM New Zealand and an Audit Director at RSM Hayes Audit, and Galina Bell, Senior Tax Manager at RSM Prince Donee status. Most people will have heard of this concept in relation to charities. But scratch the surface a bit deeper and one commonly finds a lack of any further knowledge, and some common misunderstandings. Hence we thought it would be helpful to provide a summary of some key features of donee status. What is it? Essentially, donee status is the ability to enable donors to claim a rebate on their donations.