Self-Representation

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Litigants in person, or self-reppers, often feel the justice system keeps them in the dark and covers them in the you know what. 

In family law court proceedings, it can be difficult if not impossible to obtain a costs order.  But there may occasions where the court feels it is right for a party to proceedings to be paid some or all of their legal costs.  This usually means recovering some part of your solicitor’s costs if you are represented.

But self-reppers can claim their costs as well.  An obvious candidiate is in the divorce proceedings proper (as opposed to the financial remedy proceedings aligned with the divorce petition).  The Petitioner in divorce proceedings is able to claim the court fees charged on the issue of the petition and also the costs of their time preparing the paperwork.

The 57th amendment to the Civil Procedure Rules has increased the hourly rate recoverable by a litigant in person from £9.25 to £18.00 effective from 1st October 2011.  Best then, to keep a log of the time spent on the matter, from the beginning,  so you can produce a schedule of your time and your costs if asked by your spouse or the court.

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“Without Prejudice”.  The words sit proudly, perhaps ominously, atop the family solicitor’s letter setting out the latest financial offer in the war of the spouses.

I’m often asked what this term means and have therefore added it to my Legal Lexicon.  To lawyers, the term represents a form of legal privilege (there are different forms of legal privilege but I need not go into that here).  What is legal privilege?  Well, imagine your divorce lawyer wants to make a financial offer on your behalf.  If the offer is made in an open solicitor’s letter then this offer can be shown to a judge in any court proceedings.  The offer may be overly generous with a view to bringing proceedings to an end but if the expensive proceedings drag on then it will not be possible to ask the judge to ‘forget’ the terms of your offer.  But if the offer letter is written “without privilege” it is a way of testing the water for settlement without the judge seeing the letter and being influenced by it in the subsequent proceedings.

Such ‘without prejudice’ letters can be read by a judge in a special type of hearing called a Financial Dispute Resolution (FDR) hearing when offers can be compared and the judge can comment upon the reasonableness of the settlement positions.  If settlement cannot be achieved at the FDR the same judge cannot then preside over the final hearing (or trial) as otherwise they would remember the ‘without prejudice’ offers and be influenced by them.

 

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Someone needs to speak up for self-reppers.  It appears to me they get a bum deal.  In a post on my companion blog, Larkin’s Law, I examined the legal establishment’s view of self-reppers as ‘mad, bad and dangerous to know’.  I can’t believe that the vast majority of the people who find themselves without legal representation do so by design.  They are forced into this position by being excluded from forms of public funding and also finding that their private funds cannot stretch to obtaining full time legal representation.

Strategies

What can the self-repper do to partially level the judicial playing field? Here are a few suggestions:

  1. Research and reassurance.  There is plenty of information available on the internet and I will be compiling some useful websites in the Resources page.  But for now I would like to mention Wikivorce.  I think the strength of the site lies in the sense of community that its registered users feel.  There are free information sheets on the site and a forum for exchange of views and advice.  Some of the ‘advice’ needs to be treated with a pinch of salt as it is too general in nature but this is a good start.
  2. Unbundle the services you need.  By this, I mean set out what you need to achieve and see if some of it can be ‘process-driven’ like the divorce process itself for a start and if you don’t mind doing it online then try some of the DIY sites.  Naturally, using some of these sites would make the lawyer in me slightly nervous.    Ideally, every spouse having to file a divorce petition (I think the new rules dictate that I should call it a divorce application) should have the opportunity to talk through the contents of the  petition with a family lawyer.  There are some traps here but the self-repper does not live in an ideal world so an online DIY divorce it may have to be. But remember, if money is really tight, you can type out the petition yourself accessed from the Court Service website and make use of the free leaflets on the divorce process you can pick up at your local county court.
  3. On the presumption that there is no eligibility for public funding, consider raising a small amount of funds (beg, steal or borrow) to obtain advice on the likely financial outcomes of the divorce from a good family lawyer.  Here’s how to find a good family lawyer.  Expect and demand, unless there are virtually no assets and little income in the marriage, to spend at least two hours with a lawyer.  A good family lawyer will want to know everything about you, your partner, your children and the marriage, perhaps even your star sign before they would even consider themselves to be in a position to outline some advice for you.  But then what would you expect?  Can a twenty year marriage be reduced to a half-hour free interview?  I don’t think so.
  4. If you are going to run the case yourself including representation at court then try, on a piecemeal basis, to get advice from a lawyer, on the documents that have been produced so far and what you should expect to happen at the court.  If you are clear about the relevant issues and, perhaps, what you need to ask the Judge for, then this would be money well spent.
  5. Hope that your spouse is going to pay for legal advice even if you are not.  Let me explain.  If a solicitor has to deal with a self-repper instead of another solicitor then there is a tendency to explain everything as clearly as possible.  Indirectly, you will be getting the benefit of overall ‘guidance’ on court process and procedure even though you are not paying for it.  There may also be the small satisfaction of knowing that this will increase your spouse’s legal costs because of the extra time spent by his solicitor having to explain every nuance of the law to you in long letters.  The Judge is also likely to ask your spouse’s solicitor to undertake tasks that should properly be carried out by you just because the Judge wants to have someone to shout at for the next hearing if nothing has been actioned.
  6. If your spouse has instructed a solicitor and you are unrepresented then there is nothing to stop you picking up the phone to the solicitor in question.  It does not hurt to be pleasant (even if their client’s actions towards you have not been sweetness and light).  You can ask courteous questions: “About your last letter Mr Jones, you mentioned the hearing coming up next week, what will the Judge be expecting us to do at the hearing?  Is there anything I have forgotten to give you or the court for that hearing?  What are ‘directions’?  What directions will you be asking the court for, and why?”  Contrary to rumour, most solicitors are human and will respond constructively although you should be clear that they cannot be seen to ‘advise’ you specifically on what you should and should not do as that would conflict with their duty to their own client.
  7. If you have to attend court unrepresented then consider using a McKenzie Friend.  This is not a solicitor or barrister but, usually, a friend or associate who can give you moral support, take notes for you and give quiet ‘advice’ whilst not being allowed to perform the role of advocate on your behalf.  There is a useful guidance note on how McKenzie Friends can conduct themselves and this should be read before you consider asking someone to help you in this way, here: Practice_Guidance_McKenzie_Friends.

 

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I have practised family law, mainly in relation to financial issues, for the last 14 years.  I hope I have learned a few things along the way.  Things that might be of value if I shared them with people unfortunate enough to be enduring the physical, emotional and financial hideousness of the process we have labelled ‘Divorce.’

Of course, I already share my knowledge and experience on a daily basis but usually only with those people who pay me to do so.  Not everyone can afford access to lawyers.   Or at least, not on a week-in, week-out basis on cases that can take several years to resolve.   That is why we have legal aid although only for a short while longer as the Government intends to withdraw it for most types of family law issues.  One such issue, and it’s a very big one, is divorce finance. The questions don’t get much bigger:

  • Will I have to sell the family home?
  • How much maintenance will I and the children receive?
  • After 40 years of marriage and with no pension, how will I survive when I retire?
  • Will my maintenance stop if I live with someone else?

It is not my aim to provide a dry list of information that is readily and  widely available elsewhere, such as, “How do I fill in a divorce petition?” There are a host of resources already available  that address these basic questions and I will point them out whenever I can.

What I want to do is address the questions that you don’t normally get to pose unless you can afford to purchase the answers: from a family finance lawyer.  Whilst there is some information out there on the web on certain forums, that tries to deal with finance issues on divorce, I do not have much confidence in the quality of the information on those sites.

The truth is, I can’t give precise answers to those big questions in the pages of this blog because every single person, or couple, is in a different position.  But what I can do is to share information, guidance and a few tricks I’ve picked up along the way.  This will not in any way replace the need for individual legal advice on the many and varied problems facing people as they negoiate the difficult path towards the dissolution of a marriage.  But, my Toolkit will aim to inform, encourage and empower those people who pass along this way.

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