Lawyers dealing with litigants in person should adopt a ‘professional, co-operative and courteous approach’ and avoid using technical language or legal jargon that might confuse them.
In guidance issued today jointly by the Law Society, Bar Council and CiLex, lawyers are also advised to take extra care to avoid using inflammatory words or phrases, or to inflame a dispute.
The 28-page document has been issued in response to the growing number of people attempting ‘do it yourself’ justice in civil courts, particularly since legal aid cuts in 2013. There is also a passage on dealing with McKenzie friends, including a list of triggers for lawyers to raise concerns about their presence in court.
Lawyers are told they should avoid using language that might confuse a litigant in person, but they should equally not expect to be treated any differently to how they would if dealing with another lawyer.
The guidance states: ‘You should communicate in a manner of which the court would approve, which includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable.
‘This does not mean that you have to tolerate unacceptable behaviour from a LiP, nor does it mean that a LiP has a right to expect you to respond immediately to their calls or correspondence.’
The court may ask the represented party to prepare all necessary bundles of documents and provide copies of bundles to the LiP. It is suggested that lawyers should also explain to their client why they appear to be giving assistance to the opposing party, if it is not made clear by the judge.
On McKenzie friends, the guidance is clear that it is for the court or objecting party to provide sufficient reasons why a litigant should not receive assistance.
However, a lawyer is entitled to raise concerns if they believe McKenzie friends will not observe the confidentiality of proceedings, are being unreasonable or are using the litigant as a ‘puppet’ to promote their own interests.
Lawyers should also flag up when they believe a McKenzie friend is charging more than a lawyer would charge, and should not communicate directly in court with a McKenzie friend.
The guidance notes that a rule change is under consideration by the Civil Procedure Rules Committee to clarify the court’s powers when dealing with LiPs. This is expected to be introduced later this summer.
Law Society president Andrew Caplen said: ‘Cuts to legal aid and increases in court fees have forced more and more people into ‘do it yourself’ justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures.
‘We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties.
‘We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming parliament.’