17 Sep 2013

Lay Representation

Lay Representation

Kirsty Allen, Solicitor, assesses the changes brought about by new legislation regarding lay representation in the Sheriff Court.

Kirsty Allen, Solicitor, assesses the changes brought about by new legislation regarding lay representation in the Sheriff Court.

The Act of Sederunt (Sheriff Court Rules) (Lay Representation) 2013 allows lay representation for party litigants in all Sheriff Court proceedings.

The change gives party litigants the option of permitting a ‘non-lawyer’ representative to speak on their behalf during civil proceedings, provided that they have consent of the court.  This is similar to the ‘Mckenzie Friend’ role commonly used in England and Wales.

The Background

Lay representation is already allowed in certain proceedings under certain legislation. However, this representation has, in the most part, been provided by advice agencies and in-court advisers who have a degree of knowledge and expertise in relation to the particular area of the law and the court process.

So what’s new?

The new rules will inevitably see an increase in family members and friends seeking permission to represent a party who does not have the confidence or ability to deal with matters themselves. There is an obvious need to strike a balance between catering for that requirement, but at the same time ensuring that there is no detriment to the represented party who may otherwise have sought representation from a more qualified adviser, or the expedience of the court process as a whole.

That consideration is perhaps reflected in the new court rules. The Sheriff has discretion as to whether an individual is given authority to act as a lay representative in a particular case and shall only make the appointment if it is likely to aid the court’s consideration of the case. Furthermore, the representative’s role is restricted to making oral submissions, meaning the representative is not able to draft and submit written pleadings nor question witnesses in the same way that an “approved” representative under the 1970 act can. 

Provided the Sheriffs exercise their discretion wisely, the new rules ought to result in litigants receiving appropriate support without disruption to the court process.


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