Using a lay representative in civil court action
Using a lay representative in civil court action
A lay representative is someone who is authorised by you to help you prepare and conduct a civil legal case. Court rules allow for a lay representative to do anything that you would be allowed to do to prepare and conduct your own case.
A trainee solicitor can act as a lay representative in civil cases that are taken under the simple procedure in the sheriff court.
You can have lay representation if you have started the court action or if you are the person defending legal action.
A lay representative can act in the sheriff court and the Court of Session.
A party in a civil case who is not a person
A company, limited liability partnership, other type of partnership or an unincorporated association can have a lay representative in civil proceedings. These bodies are technically called non-natural persons. They have to apply to the court on a specific form that is contained in court rules covered in Scottish Statutory Instrument no 243 in 2016. In this form you will be asked why you cannot pay for a legal representative.
An application by a company or other form of trader for a lay representative has to be considered in court chambers.
It is possible under the simple procedure in the sheriff court to have someone who isn’t representing you as a lay representative would do but is there to help you. This person is called a 'courtroom supporter'.
This person may be a friend, relative or colleague. The intention is that this person can provide support and encouragement in the actual courtroom by:-
- taking notes
- discussing the details of the case with you
- review all relevant papers and document with you
- sit beside you.
You have to ask the permission of the court to have a courtroom supporter but there is no special form to fill in. You must not pay a courtroom supporter to help you. The sheriff can ask the courtroom supporter to leave the court if it is considered that their behaviour has been disrespectful to the court.
Choosing a lay representative
There are a number of ways in which you can have a lay representative. It may depend on the type of case what option is most suitable. In some situations the lay representative can appear instead of you. In others the lay representative can only make oral submissions with the court's permission.
Under the simple procedure in the sheriff court you can have a lay representative if you are starting the claim or if you are defending it. If you are starting it you are called the claimant. If you are defending it you are called the respondent.
Lay representative authorised in civil proceedings to appear instead of you
The court rules for the two main civil court procedures (simple procedure and the ordinary cause procedure) allow for you to be represented in the sheriff court by an authorised lay representative.
Often such authorised lay representatives may be a Citizens Advice Bureau worker or an accredited debt specialist from another agency. It is possible that the lay representative will attend court instead of you. A lay representative in these cases can represent the person fully, for example, by examining witnesses if the case goes to a hearing.
A lay representative for someone in the simple procedure has to complete Form 2A and send it to the court. If the claimant has a lay representative the form goes with the claim form (Form 3A). If the respondent has a lay representative the form goes with the response form (Form 4A). The forms are available on the Scottish Courts and Tribunals Service website at www.scotcourts.gov.uk.
The sheriff can ask a lay representative to stop acting for the person at any time if they think the person’s behaviour is unsuitable for the codes of behaviour expected in the court.
Lay representative in any civil proceedings to accompany you
If you don’t have a solicitor, you may be able to use a lay representative to make oral submissions on your behalf.
The application has to be made in advance of the actual hearing at which you wish the representative to make the oral submissions. The lay representative is only allowed to make oral submissions.
When the lay representative is just supporting you with oral presentations in the court in the simple procedure they have to complete Form 2A and must give it to the sheriff clerk in person at court for the day they are to appear. They don’t have to submit Form 2A at the beginning of the claim.
The sheriff can ask a lay representative to stop acting for you at any time if they think the person is unsuitable to act in the court because of their behaviour.
Extra Guidance to filling in Form 2A to be a lay representative
When you have decided what kind of help you want from a lay representative, for example, that they will act completely on your behalf or will just make some oral representations for you, they will have to complete the Form 2A.
Section A is about the case you will be working on and this part of the form should be straightforward.
Although Section B is also quite straightforward:
- when the representative comes from a specific organisation they should state this at question B3.
- at question B4 the term non-natural person is explained. It is usually a small company or partnership and just means that it is not a single individual.
Section C - You have to give the sheriff enough information on this section of the form to allow the court to decide if you are suitable to be a lay representative. The declaration about vexatious litigants refers to a list of people who have been refused automatic access to the legal process because of their behaviour. The court just wants to know that you are not on this list which can be viewed at www.scotcourts.gov.uk.