McKenzie Friends For Lay Litigants in the Irish Courts-What You Need to Know

mckenzie-friend

Do you know one guy or girl who knows everything?

You know the lad. He has an opinion on everything, no matter how obscure or complex or unrelated to his sphere of expertise, assuming he has one.

They can be annoying but harmless, until they start giving legal advice. Then the crapola can hit the fan.

Let me explain.

A man in grave danger of losing his home and few acres of land came to me for help a few years ago. He has colossal borrowings on his home and he was hopelessly insolvent.

He hadn’t a hope of being able to repay the outstanding loans. I approached the lender and sussed them out about the situation, what their intention was, how amenable they would be to some type of settlement, and explaining that my client was doing his best, was working and caring for an elderly mother.

This bought a bit of time, time that my client could use in meeting with a Personal Insolvency Practitioner (PIP) to see whether any of the various insolvency programmes might be of assistance in solving his problem and allowing him to hold onto his property.

Things were going fine until he came to my office one day and told me he had attended a meeting of people who are struggling with the banks. At this meeting the main organiser and speaker trotted out a simple solution to the problems of the plain men and women who listened.

This simple solution had a couple of things in its favour:

  1. It was easy to understand
  2. It appeared to be a cunning, technical ploy which might just put the bank back on its arse.

The simple solution, however, had one significant problem:

  1. It was unlawful and fraudulent, and involved my client making sworn statements that were false.

Now, I had a problem.

On the one hand I was offering him a solution that was anything but simple, would be slow and messy and uncertain; on the other hand the so called guru offered a solution that was simple and with one mighty leap my client would be free of the bank’s clutches.

I hadn’t a hope of competing with that fairytale.

So I advised him I was not prepared to engage in something that was a) unlawful and b) likely to make his problems worse, and for this reason he had to choose which route he went down.

The guru went on to become a McKenzie friend and supporter for other people with similar debt problems. But the “solution” he offered was rejected by the Courts on each and every occasion it was put forward.

Not only that, but he got into significant difficulty himself in the Courts.

And the debt spiral for the debtor accumulated at a great rate because there was a series of pointless, hopeless legal motions to the Courts at various intervals. On each occasion the motion was unsuccessful-guess who had to foot the bill for the legal costs for both sides?

You guessed it: my former client. Because they are the rules, and the Court was bound to follow the rules.

McKenzie Friends

A McKenzie friend is someone who is a non-legal person and who provides assistance to a lay litigant (the phrase emanates from a court case in 1970.) Recently, however, the Higher Courts in Ireland have had to issue directions to clarify the role of McKenzie friends.

The reason for this was that frivolous and vexatious cases and motions were coming before the Courts brought by lay litigants with the help of McKenzie friends, and which were clogging up the system and had not hope of success.

The vast majority of them were ill conceived and had no hope of success.

Such was the growth of lay litigants that the Court of Appeal and the HIgh Court felt obliged to issue directions and issued directions as follows: the McKenzie friend cannot address the Court or examine witnesses.

He can provide moral support, take notes, and quietly help with advice. These practice directions came into force on 1st October, 2017. Here’s the Court’s website link to the directions.

They are not permitted to be paid for their services or manage the case outside Court.

Apparently, a number of individuals have set themselves up as advisers and charge for their advice and assistance, and help with drafting affidavits and bringing motions before the Court.

However, they have no legal training and the person carrying the can with a bigger legal costs bill is, you guessed it, the unfortunate individual with the problem in the first instance.

Also, it is a criminal offence pursuant to the Solicitors Act 1954 for a person without legal training to prepare a legal document relating to any legal proceeding for a fee or reward.

The small industry of fake legal advisers which sprung up to service the growth in the number of lay litigants bringing cases to Court fall into two broad categories:

  1. Those charging money and
  2. Those with an agenda against the Courts or banks or have some other agenda which can be canvassed at the expense of lay litigants in Court.

Concerns from Courts: “Abuse of Process”

Justice Mary Irvine from the Court of Appeal has raised her concerns about people taking advice from people who are not qualified and have no understanding of the Court rules etc.

“Day in, day out, this court sees lay litigants pursue appeals and applications which have no prospect of success,” she said earlier this year. The Courts have no option but to award costs against these lay litigants, pushing them further into debt.

Justice Michael Twomey recently imposed restrictions on a lay litigant and her non professional adviser who have been involved in multiple actions to reclaim a farm that was repossessed.

The Judge said the multiple actions involving the Midlands farm amounted to “an abuse of process upon an abuse of process”. He described the litigation about the Portarlington farm as “obsessive, hopeless and vexatious”.

In fact, the High Court had made what is known as an ‘Isaac Wunder Order’ which prevents her taking any further proceedings regarding the farm against ACC and the receiver, without permission from the president of the High Court. Justice Michael Twomey expanded the Isaac Wunder Order to provide that no proceedings could be taken by her against any defendant in relation to the farm without the consent of the president of the High Court.

The Judge also went on to disqualify the McKenzie friend, Mr. William Murphy, from acting as a McKenzie friend in the future. This means, he said, that Mr Murphy, who the judge noted has acted as a McKenzie in other cases and has a “busy practice”, cannot provide assistance or advice to any person in relation to court proceedings unless he obtains the consent of the President of the High Court. (Read a newspaper report of the case here.)

Conclusion

Anyone who provides you with support when you are in difficulty with a legal matter is to be welcomed.

However, you need to ensure that the distinction between support and legal advice is maintained. If you cannot afford a solicitor consider looking for advice from FLAC or Citizen’s Advice or applying for legal aid or assistance from the Insolvency Service of Ireland or MABS.

Not Guilty Does Not Mean Innocent in Criminal Law

criminal law ireland

The finding of “not guilty” in an Egyptian Court, and release from custody from an Egyptian prison of Ibrahim Halawa, has led many people, including Minister Simon Coveney, to describe him as “innocent of the charges”.

During the summer Paul Murphy TD, and the Jobstown water protesters who were accused and charged with false imprisonment of Joan Burton and her assistant were found “not guilty” of the charges levelled against them.

Their supporters naturally claimed they were all found “innocent”.

Well, that’s not exactly the case.

A Court or a jury in a criminal case cannot find you innocent; the choice they face is “guilty” or “not guilty”, and both Ibrahim Halawa and the Jobstown protesters were found “not guilty”.

That’s all a Court or a jury can do.

The question of innocence, from a legal perspective, is a different matter.

Let me explain.

Burden of Proof-the Probative Burden

In a criminal trial the prosecutor has a probative burden-that is, the burden of proof. The standard in a criminal trial is “beyond a reasonable doubt”.

So, the prosecutor must prove the facts of the case, and the accused’s guilt beyond a reasonable doubt.

If the prosecutor fails to discharge this burden of proof, then the finding of the Court or jury will be “not guilty”.

This, as you may now recognise, does not mean the accused person was innocent.

It does mean, however, that guilt has not been proven and the accused person can then enjoy the presumption of innocence, just like everybody else, including persons who have not been accused of any crime.

You can draw two conclusions from a finding of not guilty:

  1. The accused person was innocent as a spring lamb, or
  2. The accused person “did the deed” but the prosecutor, for whatever reason, was unable to discharge the probative burden-to prove guilt beyond a reasonable doubt.

Blackstone’s Formulation

Sir William Blackstone, in his 18th century book of commentaires on the common law, came to the following conclusion:

It is better that ten guilty persons escape than that one innocent suffer

This is also called Blackstone’s ratio. What he actually wrote in his “Commentaries on the laws of England” in 1760 was, “All presumptive evidence of felony should be admitted cautiously; for the law holds it better that ten guilty persons escape, than that one innocent party suffer.”

In any event, it is essential that all accused persons enjoy the presumption of innocence when faced with a criminal charge. It is a fundamental constitutional right in Ireland, and also a human right in most, not all, parts of the world.

It’s probably also useful to recognise the difference between “not guilty” and “innocent”.

Deposits When Buying Property In Ireland-the Legal Position

property purchase deposit

Are you buying a house or apartment?

Are you wondering about the deposit you will have to pay, and whether you can get it back if the sale does not go ahead?

Let’s take a look and I will clarify the situation for you.

First, you need to understand that you will pay two deposits:

  1. A booking deposit to the auctioneer
  2. The contract deposit

The Booking Deposit

The booking deposit you pay to an auctioneer is fully refundable. You can change your mind about buying the house for good, bad, or no reason and you are entitled to get your booking deposit back.

Just make sure the booking deposit is paid to the auctioneer, not the vendor, and get a receipt confirming it is a booking deposit. You can also, if you feel it necessary, visit the website of the Property Services Regulatory Authority and check the auctioneer is on the public register.

The Contract Deposit

The contract deposit is payable when you sign and return the contracts to the vendor’s solicitor.

Let’s assume you are buying a property for €200,000. The contract deposit will be 10% of the purchase price-that is, €20,000.

So, when you sign the contracts you will have to pay €20,000 less whatever booking deposit you have paid to the auctioneer.

Let’s assume you have paid €5,000 booking deposit to the auctioneer; then you will have to pay €15,000 when you are signing and returning the contracts.

Once the vendor has signed the contracts and returns one part to your solicitor there is a binding contract in place. At this point you will not get your deposit back if you change your mind.

However, there is an exception to this: if your solicitor had inserted a “subject to finance” clause in the contract and the finance does not, for whatever reason, come through then you may be entitled to the deposit back on the basis that there is no binding contract in place as the contract was “subject to finance”.

Be very careful, though: failure to complete a sale can lead to the forfeiting of your deposit.

Also, the vendor can actually sue you for the balance of the purchase price and to compel you to complete the sale-a remedy of specific performance. This will not be of much use, however, if you are simply unable to complete.

But damages will be payable if the vendor rescinds the contract by serving a Completion Notice and you are unable to complete (see below).

In addition, the vendor can sell the property to someone else and if they get a lower price he can sue you for the difference-that is, the drop in value or sales price. First, he needs to serve a Completion Notice on you.

Completion Notice

Once the closing date has passed and you have been unable to complete the purchase the vendor can serve a Completion Notice on you. This makes time of the essence in relation to completing the sale.

When the time in the Completion Notice has passed the vendor can rescind (bring to an end) the contract and pursue you for damages and loss arising from your failure to complete the transaction.

Buying at Auction

When you buy at auction the procedure is slightly different. When the hammer falls and you are the highest bidder you will not be paying a booking deposit, but will have to sign the contract and pay the contract deposit.

If you are unable to complete, therefore, you will lose your deposit.

So, you need to carry out all your research about the property you have your eye on before you go to the auction; doing so later on is too late and is a stupid, avoidable mistake. (Learn more about buying property at auction here).

Conclusion

Booking deposits are refundable; contract deposits are not so get professional advice and carry out your due diligence before signing the contract and paying the contract deposit, not after.

Unjust Enrichment and Quantum Meruit-Why You Should Know About This Equitable Principle

 

unjust enrichment

Have you ever heard of a latin phrase, “quantum meruit”?

You may be thinking that you have not, and you are none the worse for it, either.

However, this archaic latin phrase could become your friend some day if you are involved in a dispute about a contract you are a party to.

Let me explain.

Firstly, “quantum meruit” means “what he has earned” or “as much as he is entitled to”. It would arise where you claim you are entitled to be paid for goods or services supplied to the other party where you are not covered by the strict interpretation of the terms of the contract, or even where there is no contract.

It is said, therefore, to be a quasi-contractual claim.

Let’s say you have agreed some terms of a proposed contract, but you have not agreed on price. Nevertheless, you perform the contract with the implied or express agreement of the other party.

The other party cannot claim that because you did not agree on price that you are not entitled to be paid. No, you would be entitled to be paid on a “quantum meruit” basis-that is, as much as you have earned or deserve.

Another example would be where the other party has agreed to pay you a “reasonable sum” for the goods or services or where the extent of the work to be performed was agreed and set out in the original contract, but the work carried out has exceeded what was agreed.

A further example would be where you have exceeded the precise terms of the contract. This could arise in an employment situation, or in a typical building/construction situation where you go over and above what you were supposed to do and the other party allows you to do so and is happy to enjoy the extra benefit of your work or goods.

At its essence, therefore, a quantum meruit claim is based on a claim for a reasonable sum for the services rendered or goods supplied.

Quantum meruit is what you might be awarded arising from your claim based on the equitable principle of unjust enrichment-that is, you are claiming that the other party has been enriched at your expense and you are entitled to be paid in equity and good conscience.

What is unjust enrichment?

Unjust Enrichment

Broadly speaking there will be four elements to unjust enrichment:

  1. You provided valuable goods or services to the other party
  2. The other party accepts your goods or services and benefited from them
  3. The other party was reasonably notified, or should have inferred, that you expected to be paid
  4. It would be inequitable or unconscionable for the other party not to pay

What you will be entitled to, if you are successful in your legal proceedings, will be quantum meruit-that is, what is reasonable for your goods/services.

You will see from the above that unjust enrichment can arise

  1. Where there is no contract
  2. Where there is a contract, but its terms have been exceeded by one of the parties.

A useful decision in this area of law is Vedatech Corporation v Crystal Decisions (UK) Ltd. & Anor [2002] EWHC 818 (Ch) (21st May, 2002) [2002] EWHC 818 (Ch).

The circumstances where a claim of unjust enrichment can arise are myriad, and include employment, construction, and in all situations where goods or services are supplied.

How to Negotiate Anything-4 Stunningly Effective Tactics

negotiation tactics

Negotiating.

Haggling.

Some people, like my mother, love negotiating, and have done so all their life.

Some people, like my wife, hate haggling. I think people like this feel it is insulting to the other party. But often, the other party expects you to haggle or negotiate, and are ready for it. In fact, they have probably built the negotiation into their price to begin with.

Being able to negotiate effectively is a vital skill, one which can serve you in all walks of life-from your career to buying a car to buying other goods to buying property to negotiating in relationships/family etc.

As a solicitor, I have to negotiate often on behalf of clients, and I have made it my business to study the top negotiators to do the best job I can.

Do you want to discover how to negotiate effectively? That’s what I am going to take a look at in this piece, and by the end of it you will be in a far stronger position to negotiate anything.

Sounds good?

  1. The Most Important Negotiation Tactic-Detachment

The single most important tip is not to care too much. If you do, and you make it blatantly obvious that you very badly want this car/house/suit/holiday, you weaken your negotiating position from the outset.

Because the other party knows how badly you want it. What you need to do is maintain an air of detachment-sure, you want the thing, but not that badly. You are ready to walk away if the deal is not right.

As soon as the other party things, “Jeez, this guy is going to walk away, he must have other options”, you are in a far stronger position.

And giving this impression is entirely within your control.

So, care, alright, but not too much.

Also, if and when you are walking away because the gap between you is too large, and the other party offers you his business card “in case you change your mind”, don’t take it. Reverse the balance of power by giving him your business card or contact details, and tell him, “give me a call if you change your mind”.

Remember, you don’t have to buy this car at this garage, you can buy a different car or not buy one at all. But you have the money, and he needs the sale.

There are two ways to ensure you don’t care too much:

  1. Get someone else to negotiate for you
  2. Recognise the difference between loving and liking-think about how you will feel in 20 years’ time about this thing you are trying to acquire. This will allow you to become more detached.

2. Maximize the Other Party’s Investment/Commitment

If you can get the other party to invest a lot of time in trying to win you over it puts you in a stronger position. Why?

Because they have already invested quite a lot in you. And we know that the more a person has invested in something the more desirable it becomes for them.

Let’s say you are buying a motor car, or indeed anything in retail, and you spend a lot of time at the car dealers, but don’t buy. The car salesman has invested quite a lot in you, yet has got no return whatsoever.

Then you go back another day, and spend even more time discussing the potential deal. The more time the car salesman spends on you the more reluctant he will be to see you walk off and go to another dealer. He is far more likely to cave after spending all this time, especially if he knows he has competition.

You will, of course, have told him you are looking at other cars in the competitor garage.

3. Start Friendly and Cooperative With an Air of Incompetence

If you start friendly and cooperative you can always get more aggressive and adopt a “tough guy” stance later on.

But if you start with the “tough guy” stance you will have no credibility later on when you try to be nice and friendly, and claim you misspoke.

If the other party starts aggressive, let them.

Take it, take notes because inside they are thinking “this is going to be easy” when, in fact, all they are doing is investing more time in you. Ultimately, this will make it harder for them to walk. They will be like someone investing a load of money into a slot machine and being encouraged to try another machine.

No way will they walk, because they have put too much into this machine and it must be due to payout.

You want to be more like the private investigator Columbo than Confucius, the Chinese teacher and philosopher.

If you appear to be incompetent, or inexperienced and say to the other party, “look, I’m new to this, you are extremely experienced and have been around a long time, maybe you could help me here” there is a good chance they will respond well to this approach.

4. Deadlines are Important but Negotiable

The vast majority of concessions and deals are done towards the end, near the deadline. Don’t be afraid to exploit this fact.

For example, you spend a good bit of time negotiating the purchase of an expensive piece of clothing. Just when the vendor is happy he has you on the hook, and you are now due to pull out the credit card, you say, “can’t you throw in a couple of ties?” You will have a great chance of getting the ties, or a few pairs of socks, or whatever is appropriate.

But deadlines are the product of negotiations, therefore are negotiable. However, the passing of a deadline can actually be the opening up of an opportunity.

How?

Ask, as they are quitting, “where did I go wrong?”. They will say, “when it’s over, we’ll tell you”.

And another deadline can be negotiated. Things are never over while relationships continue.

How many times have we seen political deadlines slip in the North of Ireland, for example, but eventually agreement is reached? It’s never over until it’s over.

Conclusion

These 4 principles will serve you well the next time you need to haggle or negotiate anything. It may be in your job, with your family, in your business, or just shopping.

You won’t need them all at the same time, but one you will need is the ability to give the impression of being able to walk away without batting an eyelid.