Lawyers Dealing with Litigants in Person

In this Blog Kristy Ainge, of our Litigation Department, discusses the increase of Litigants in Person.

There has been an astonishing rise in the number of litigants in person (LiP) following legal aid cuts, and the increase in the small claims limit, and LiPs are appearing more frequently in the Courts. This has an impact on the operation of the courts and on the lawyers representing the other party in the case.

Some LiPs may have sought legal advice at the beginning of the claim, or intermittently throughout a case, or some will not obtain any legal advice at all, which has many practical implications on lawyers. Some LiPs feel that they are well equipped taking on their own case (and this can be true), others cannot afford to instruct a lawyer and are unable to obtain free legal advice. No matter what the reason, assumptions should not be made as to their capability.

Solicitors adhere to a Code of Practice, and a Lawyer's paramount duty is to the Court and to the administration of justice, and a lawyer must not take unfair advantage of an unrepresented opponent.

Knowing and using law and procedure effectively against the LiP because we have the skills to do so is not taking "unfair advantage". However, we should adopt a professional, co-operative and courteous approach at all times, and at the first instance, recommend that they seek independent advice.

We should avoid any technical jargon, and communicate clearly. If we do use jargon then the LiP may feel intimidated and anxious about matters more than they already would be.

Correspondence and telephone calls from LiPs may be emotive, repetitive and potentially hostile, but we must do our upmost to deal with this, and continue with the litigation as we would if we were dealing with a legal representative.

Preparing for a hearing with a LiP has a great impact on the civil court system with an increased demand on time, costs and resources. The Courts may ask a represented party to prepare the bundle (even though if may fall on the LiP if they were represented), provide written arguments and documents, and where necessary, drawn up the order made by the Court.

When facing a LiP, it is important to advise the client of the additional cost implications opposed to the costs if they were represented. This would include charging the client for the time spent preparing for trial, the additional time in liaising with a LiP because they may not understand certain matters. Negotiating with a LiP can most often be much more difficult than negotiating with solicitors.

Some clients can be quite perplexed by the fact that we assist the LiP so it is important to explain our professional duties to the client and the potential advantages, such as reducing wasted time taken at hearings, delays through adjournments etc. Assisting the LiP can help try to avoid this.

It is also important to note that if we become aware that a LiP is a vulnerable party (possibly lacking mental capacity), we should bring this to the Courts attention and not take advantage of this.

One big issue with LiPs is that some habitually and persistently issue claims without reasonable grounds, where such practice amounts to an abuse of the court process. Dealings with vexatious litigants can be time consuming and expensive. The following steps may be taken if someone falls within this category:

• If a name is familiar, check whether the individual has made a claim about the same issue previously
• Consult the courts list of individuals that have been declared vexatious by the Attorney General and those subject to Civil Restraint Orders
• Advising the client to apply for appropriate sanctions to control behaviour
• Applying for a Civil Restraint Order if the LiP is vexatious.

In summary, dealing with litigants in person can be time consuming, and costly for the client. It is important to clearly outline the duties towards the court and the LiP, and also outline the potential cost implications of dealing with a LiP.

Finally, a potential benefit of dealing with a LiP, is that if the client is unsuccessful, the costs payable to the LiP will be far less than if they had been represented.

However, there are of course some LiPs that are more than capable of dealing with proceedings themselves, and lawyers should not underestimate dealing with a LiP.