On the 6th August 2010, the Scottish Government issued guidance on lay representation in Court proceedings for homeowners faced with repossession. The guidance provides advice on the role of a lay representative and the competences expected of an approved lay representative as introduced by the Home Owner and Debtor Protection (Scotland) Act 2010.

The guidance sets out advice on how prescribed persons or bodies should approach the approval process, and how organisations should seek to manage the provision of lay representation so that the individual client receives appropriate assistance from the appropriate adviser. The guidance is designed to be read alongside the forthcoming Lay Representation in Proceedings relating to Residential Property (Scotland) Order 2010.

Definition and Role of a ‘Lay Representative’

A lay representative is defined as an individual, other than an advocate or solicitor, approved [for the purposes of repossession proceedings] by a person or body prescribed by the Scottish Ministers.

Lay representatives are not supposed to replace the function of a solicitor or an advocate in court proceedings. They are to assist homeowners, who may otherwise not qualify for Legal Aid and be unable to afford the services of a solicitor, when faced with often intimidating court appearances. A lay representative is to be clear about the limits of their own competences and be able to identify when a particular case should be referred to either another lay representative, or a solicitor, with the appropriate skills and knowledge. Should the service of a solicitor become required, the lay representative should remind the individual that they may be liable for Legal Aid (and should therefore be familiar with the financial eligibility requirements of Legal Aid).

Throughout proceedings a lay representative must satisfy the Sherriff that:

• He/she is a suitable person to represent the debtor/entitled resident; and
• He/she is authorised by the debtor/entitled resident to do so.

In line with this, approving organisations are encouraged to provide their local courts with a list of lay representative approved by them and it is recommended that lay representatives themselves obtain written confirmation from the debtor/entitled resident that they are authorised to represent them at Court. When approving lay representatives, prescribed approving organisations will have to bear in mind that efficient use of the Court’s time is paramount, and so the lay representatives must be competent in this regard.

Prescribed Approving Persons/Bodies

Those persons/bodies which have the power to approve lay representatives are:

• Organisations with a current entry on the register of advice organisations established and maintained by the Scottish Legal aid Board
• Organisations which have been awarded accreditation at Type III level against the Scottish National Standards for Information and Advice Providers (advocacy, representation and mediation at court or tribunal level);
• Local Authorities; and
• Citizens advice bureaux which are full members of the Scottish Association of Citizens Advice Bureaux – Citizens Advice Scotland

Procedure for Approval of Lay Representatives

Individuals wishing to act as a lay representative must make an application to an approving organisation. Consideration of an application must involve the assessment of the applicant’s:

1.  Knowledge and understanding of:

• Scottish legislation and common law in so far as they relate to housing and repossession, and
• Court procedures and rules

2.  Competence at constructing and stating a case both orally and in writing

3.  Advocacy skills

The key recommended competences of a lay representative are that he/she:

• Has impact and credibility as a representative (i.e. good knowledge of the legislation relevant to this area of law, objectivity, good presentation skills);
• Can undertake effective legal research;
• Understands relevant Court rules, protocols and procedures, and basic principles of rules and evidence;
• Has good analytical skills and can apply their knowledge, understanding and research to individual cases;

An approved lay representative must not act in a situation of conflict of interest and must respect client confidentiality.

Approving organisations may need to consider an applicant’s training needs either as part of the approval process, or even before being able to grant approval. Approving organisations will also need to ensure they have adequate internal arrangements in place to ensure ongoing management and monitoring of approved lay representatives. If an approved lay representative’s performance becomes unsatisfactory, even after additional training, the approving organisation must withdraw their approval. During any period of additional support or training, an approved lay representative may not represent any debtor/entitled spouse, until such time as the approving organisation is satisfied the lay representative can perform adequately.

Summary and Conclusion

The Lay Representation in Proceedings relating to Residential Property (Scotland) Order 2010 is due to come into force on 3 October 2010. Lay representation, albeit within the limited field of repossession proceedings, is a big step forward in terms of rights of audience in the Scottish Court system. It will provide greater access to justice for homeowners experiencing an already challenging time, both financially and emotionally. 

Will the floodgates be opened with lay representative applications? Many of the advisors working within Local Authority advice shops, CAB etc are volunteers and are already pushed with their current workloads. Debtors often cannot get their first appointment until weeks after contacting advice workers. Unless the number of advice volunteers significantly increase, it may be that advisors don’t feel they have the capacity to provide their traditional advice and also attend court for often half a day at a time.

It is unclear from the legislation whether lay representatives have full scope to do everything a solicitor would do in such proceedings, including drafting pleadings. Whilst the Act does not specifically address this point, the Order and guidance makes reference to the presentation of coherent argument, ‘both orally and written’. It therefore seems likely that an authorised lay representative will also have the authority to draft, for example, Mortgage Rights Minutes. Bearing in mind the length of training a solicitor or advocate undertakes, it remains to be seen whether the new provisions have gone far enough to ensure Court time continues to be used efficiently or whether the fairly onerous criteria laid down in the legislation will prevent potential lay representatives even applying for authorisation.

Further Information

For further information on the issues raised in this ezine, please contact Ruari MacNeill, Katrina Lumsdaine, Claire Martin, Andrew Foyle or your usual contact within the Banking Team.

This bulletin is for general information only and does not constitute legal, investment or other professional advice. Please contact us should you require advice on any particular legal issue. Anderson Strathern LLP accepts no responsibility for any loss that may arise if reliance is placed on any information or opinions expressed in this bulletin.