4. Representing clients in court

• What happens in court
• Open court
• Useful techniques
• Plan well
• Be brief
• Summarise
• Prepare clear documents
• Tell the story
• Quote precedents and powers
• Admit ignorance
• Use court staff
• Address the judge or magistrate
• Look smart, be polite, speak clearly
• Know your own limits

Many debt advisers regularly represent clients at court hearings, but if your local court has not had experience of representation by lay advisers, you may need to arrange this.

The court clerk is likely to be a useful contact at the magistrates’ court.

For more details about the courts, see Chapters 11, 12, 13 and 14.

What happens in court

• Open court

The majority of hearings at which advisers represent clients are in chambers.1r39.2 CPR; CPR PD 39, para 1 This means that the hearing is usually held in private in the district judge’s office, with only the client and their representative, the solicitor or representative acting for the creditor, and the district judge present. The district judge does not wear a wig or gown, and everyone remains seated throughout the hearing. Before a hearing, you must give the court and creditor all the information and documents to be used at the hearing.2Part 1 CPR; CPR PD 23, para 9

The ’claimant’ or their solicitor presents their case to the district judge. The claimant is normally the creditor, except if the client has applied for something like a time order (see here) or for a warrant to be suspended (see here).

After this, the other side gets the opportunity to speak. As the client’s representative, you have an opportunity to explain briefly the client’s circumstances and make a proposal. A financial statement (see here) is essential if making an offer of payment.

The creditor’s solicitor or agent can comment on the proposal and the district judge makes an order.

It is always worth introducing yourself to the creditor’s representative at the court while waiting to be called and finding out what they have been instructed to ask the court for. The hearing normally takes five to 10 minutes, but this can be reduced if you have successfully negotiated with the creditor or solicitor beforehand.

The court always needs to know what powers it has to make a decision. If you want the district judge to make a particular order, make sure you can refer to the relevant legislation that gives them this power and any relevant case law that supports the client’s case. See Chapter 11 for more information.

 

1     r39.2 CPR; CPR PD 39, para 1 »

2     Part 1 CPR; CPR PD 23, para 9 »

Open court

Some hearings (such as appeals to judges) take place in ‘open court’. Courts have the discretion whether or not to allow a lay adviser to address the court on behalf of their client (except in the small claims procedure), but most welcome the assistance of a debt adviser. Find out the views of the judge or magistrate in advance, if possible, from an usher or clerk.

Hearings are held in public, and are more formal than hearings in chambers. A circuit judge, a district judge or magistrate hears the case. The court may be full of people waiting to have their cases heard, and solicitors or barristers waiting to represent. The creditor or a solicitor presents the case and may bring witnesses to cross-examine.

The client may be asked to speak on oath, but you may be able to present the case without the client needing to speak. It is customary to stand when addressing the judge.

Many courts do not allow lay representation, but you may be able to be a ’McKenzie friend’. This is someone who accompanies the client to the hearing, advises them, suggests what they should say and makes notes of the proceedings. If you are considering attending court as a McKenzie friend, you should read the practice guidelines available at judiciary.gov.uk/publications/mckenzie-friends.

Useful techniques

• Plan well
• Be brief
• Summarise
• Prepare clear documents
• Tell the story
• Quote precedents and powers
• Admit ignorance
• Use court staff
• Address the judge or magistrate
• Look smart, be polite, speak clearly
• Know your own limits

Plan well

Plan everything to be said in advance. Make sure it is logical and clear. Use notes if necessary. Rehearse presentations if possible, particularly if you are a new representative. You should inform the court if you have not had time to obtain full instructions – eg, in the case of emergency hearings or court/duty desks. It may then be in the client’s best interests to request an adjournment, even if this means that the client may have increased liability for the creditor’s costs.

Be brief

Local courts operate to very tight timescales (hearings are often listed for five or 10 minutes) and judges expect representations to be short and to the point. Avoid any repetition.

Summarise

The court wants to know what order it is being asked to make and the reasons why it is appropriate to make it. A written summary of the case, briefly setting out the issues, the facts and any relevant legislation and case law is often helpful and can be handed out at the beginning if it has not been possible to circulate it in advance. Take copies for the judge and creditor’s representative. This can then be expanded on in the presentation.

Prepare clear documents

Financial statements or other documents used to support a case should be clearly presented and photocopied for the judge and creditor’s representative.

Tell the story

Explain the background to the case clearly and concisely in chronological order. Do not assume that the judge has read the papers.

Quote precedents and powers

Give clear references and explanations of any past cases cited in support of your case if it is unusual, and the legal powers on which it depends. Reference the Civil Procedure Rules (see here) and any caselaw on which you intend to rely. Take copies for the judge and creditor’s representative.

Admit ignorance

If stuck, it is better to admit this and ask for help rather than pretend otherwise. Provided your case appears reasonable, many judges are helpful if they are asked. However, this should never be used as an alternative to thorough preparation of the case. Do not pretend to be a solicitor or allow others to assume wrongly that you are one.

Use court staff

Before the hearing, tell the usher that you wish to speak on the client’s behalf. They then inform the court clerk or the judge and tell you if there is anyone to represent the creditor.

Address the judge or magistrate

With effect from December 2022, district judges in the county court and magistrates’ courts should be addressed as ‘judge’ (as should tribunal judges). Lay members of magistrates’ courts and tribunals should continue to be addressed as ‘sir’ or ‘madam’ and a county court circuit judge as ‘your honour’.

Look smart, be polite, speak clearly

Wear smart clothes (or apologise for your inability to do so – eg, if it is an emergency application). It is usually acceptable for lay representatives to dress less formally. Use standard English if possible; slang may not be understood and will almost certainly not further your case. Appear as confident as possible without being ’cocky’. Be respectful and pleasant. Use eye contact and smiles to retain the attention of the judge.

Know your own limits

Do not attempt to represent a client in court without being aware of all the possible outcomes.1For further information, see P Madge, ‘Advocacy for money advisers’, Adviser 44 Complex representation may require lay advisers or lawyers who are not specialists to refer to lay advocates, solicitors or barristers who are.

 

1     For further information, see P Madge, ‘Advocacy for money advisers’, Adviser 44 »