Litigant in person ‘not entitled to indulgence’

 

All the fun of the (un)Fair

I have written before about the difficulties encountered by self-reppers when trying to deal with the court system.  The courts are braced for a significant rise in the number of litigants in person when legal aid is removed from the grasp of most people requiring family law help in April 2013.

The spotlight will be on the courts (and judges in particular) to see how the reasonable demands of access to justice from the growing band of self-reppers will be met from the dwindling resources at the court system’s disposal.  There have already been severe cuts to the number of court staff.  I could wheel out some stats at this point but the reality on the ground says it all.  Most courts have public counters.  This is where you go if you need to grab some court forms or hand in court papers.  They used to be open to the general public from 10 in the morning until 4 in the afternoon.  There might sometimes be a bit of queue but there appeared to be enough staff around, hiding behind the screens, to come and help when things got busy.  Not any more.  Most courts now have restricted opening hours for their public counters.  My local court operates on half days.  If you want to issue a document and it is not screamingly urgent, then hard luck.

But what about the experience in court itself?  In a recent case in the Court of Appeal,  Lord Justice Kay, vice-president of the Court of Appeal, said that a particular self-repper’s lack of legal understanding did not entitle him to ‘extra indulgence’.  The Judge went on to say: ‘It seems to me that, on any view, the fact that a litigant in person “did not really understand” or “did not appreciate” the procedural courses open to him for months does not entitle him to extra indulgence.’

Having had a quick glance through the judgment it does appear that this particular self-repper had taken a few liberties.  But such cases are going to crop up in increasing numbers as we head into the economically austere, non-legal aid future.  This case prompted me to think about my own experiences with self-reppers.  My reflection was sharpened by the editorial comment in my professions’s trade mag: The Law Society Gazette which said about the case:

The finding will comfort solicitors facing a soaring number of self-represented opponents.

Unfortunately, I find little comfort in the finding.  I have represented clients whose ex-partners were self-repping.  Some of those people could have afforded legal representation.  Some could not.  Certain individuals were perfectly pleasant and decent and I tried to help them as much as I could without overstepping my own professional boundaries.  Other individuals had what I can only describe as ‘issues’.

Those issues used to be in relation to my client, usually in a divorce, but as the case went on, those issues would magically transfer themselves to me. Before long, I was the villain: lying to the judge; destroying a perfectly happy family; morally bankrupt; financially grasping; without a single shred of human decency or understanding.  In case I was too thick to get the message I could often rely upon the self-repper’s extended family to helpfully shout out my failings at the next court hearing.

If you have both parties legally represented then, in most cases, you can concentrate on the issues that the judge will consider relevant.  But more than that, a lawyer can help, constructively and patiently, to manage a client’s expectations of what can be acheived.  So, those self-reppers in the past who hated my guts could have had their own lawyer explain that I really wasn’t out to destroy them.  All that time and energy distrusting every word I said or letter I wrote just hopelessly, and sadly, prolonged the whole shouting match.  And don’t forget that my own client in this scenario, paying for my legal advice, ends up paying a whole lot more because their self-repping ex needs, at best, to have everything explained to them, and at worst, just wants to be as bloody-minded as possible to keep those bills racking up.

But despite some pretty horrible experiences with one or two self-reppers who had these proverbial ‘issues’ with the cut of my jib, I find myself largely sympathetic to the plight of litigants in person.  How do you make sense of a legal code or procedure that some lawyers struggle to understand?  I once jokingly quoted a small section of the costs rules in a previous blog from the Practice Direction accompanying Part 28 of the Family Proceedings Rules (FPR 2010). This states:

Rule 28.2 provides that subject to rule 28.3 of the FPR and to paragraph (2) of rule 28.2, Parts 43, 44 (except rules 44.3(2) and (3), 44.9 to 44.12C, 44.13(1A) and (1B) and 44.18 to 20), 47 and 48 and rule 45.6 of the CPR apply to costs in family proceedings with the modifications listed in rule 28.2(1)(a) to (d).

I mean, for Christ’s sake, how are self-reppers meant to get their non-legal melons around that one?

And, in the interests of fairness, whilst most solicitors have a few horror stories about self-reppers, the legal profession does not always cover itself in glory.  I must not say anything to bring the legal profession into disrepute and I wouldn’t dream of doing so.  I will only observe that there are some members of the legal profession who are tossers misunderstood, with egotistical extrovert personalities who are  arrogant forthright, long-winded articulate, and utterly pompous possessed of remarkable gravitas.

Since this blog is intentionally aimed at the public, rather than my friends and peers in the legal profession, I know that a fair few self-reppers visit my site, so I would be interested to hear their views in the comments section below.

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  1. Tony Bevington’s avatar

    I have attended a first and FDR hearing as a LIP recently. The final hearing due shortly in Financial Remedy. For the first two the judge was scrupulously fair and I was treated in a way that helped me relax totally. I have tried to adhere to the timetable, so much so that my submissions have been at Court two weeks early. So the fact that the Judge hadn’t read any of them made me wonder about, ‘fairness’. Nevertheless he seemed to get a grasp quickly. But what I read about procedure went out of the window. As the Solicitor representing the other party hijacked the FDR with additional requests for expert opinion and due to time constraints we now have to go to Final Hearing. To make matters worse the Solicitor dragged her heels over the Orders and tried to do them after the assigned date. Telling me ‘this is the norm and as long as they are done by the Court Date the Court won’t worry.’ So why give a date in the first place ?

    Reply

    1. Alan Larkin’s avatar

      Hi Tony,

      All I can say is that if the court has given an order and directed that it be complied with by a certain date then it should be adhered to. If the failure to adhere to an order means that the other party is prejudiced coming up to a hearing then they should draw that to the attention of the court. I tend to find that LIPs are given more leeway over adherence to the procedure but there is no excuse for a solicitor (unless it is genuinely beyond the control of all parties) and a judge can consider the sanction of costs against the party who is represented by a solicitor. If the court thinks the fault lies directly with the solicitor rather than the party being represented then there may be a wasted costs order. This means the solicitor has to pay the costs to the prejudiced party and the solicitor cannot claim that money back off their own client.

      If a key date for compliance with an order has been missed and you think you are being adversely affected by that you can write to the court and point out the delay and ask that a penal notice been applied to the part of the order that is outstanding. The court may list for a hearing to decide the issue and if the court agrees with you then there will be a costs order against your ex-partner.

      Reply

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