One of Lord Woolf's key aims in his review of civil justice is to make it easier for people to bring cases on their own behalf without the need for lawyers.No one would dispute that the existing procedures are a minefield for the uninitiated litigant in person.
However, it seems that the problems are not all one way.
While unrepresented people may face enormous difficulties in bringing a case, lawyers also have problems in knowing how to handle a case when they are up against a litigant in person.If Lord Woolf achieves his aim, and if legal costs continue to rise out of the reach of many people, it is a situation lawyers can expect to face very much more often.According to solicitors with experience of dealing with litigants in person (LIPs), the most common mistakes their colleagues make are:-- to be very aggressive with the LIPs, hoping this will frighten them off;-- to try to catch them out on a technicality and have the case struck out;-- to delay everything as much as possible, hoping they will give up and go away; or-- not to take the case seriously, assuming that the litigant is, at worst, deranged and, at best, arguing a completely spurious point.None of these strategies is likely to be in your clients' best interests, they warn.Aggression only adds to the litigant's existing feelings of being wronged and makes him or her more determined to get 'justice'.
Procedural manoeuvres will convince the litigant that there is a conspiracy against him or her, which includes the court.
Being dismissive about the case leaves you open to nasty surprises.
And delay can be equally unwise, it seems.One successful LIP believes that the solicitor acting against him used delaying tactics hoping that he would abandon the case.
'In the event it backfired, because it gave me a chance to mug up on the law before each new stage,' he says.
'If they'd gone straight to trial rather than trying to spin it out, I'm sure I would have found it more difficult.'Because of the approach adopted by the other side's solicitors, by the time he reached the High Court, he had had plenty of practice at hearings.
'By that stage, I had been through a dozen hearings, including eight interlocutories.
I wouldn't underestimate the ordeal of the High Court, but at least by that stage I had learned what to expect.'Matthew Marsh, head of litigation at Collyer-Bristow, has around ten years' experience of handling cases against LIPs.
One of his clients is the Legal Aid Board, a frequent target for LIPs seeking to have a refusal of legal aid judicially reviewed, or alleging wrong-doing on the part of the board.Solicitors should never do anything which will inflame the situation, he says.
'Certainly in the work I do for a public body, you have to be very measured, and incredibly patient - just explain everything you're doing.
You must never take them by surprise of do anything that looks as if you're taking advantage of their ignorance of procedures.
Never do anything that looks as if you're conspiring with the court against them.'This patience and politeness extends to making yourself - or a senior colleague - available if the LIP turns up in your office unannounced, he says.
'It is very difficult to refuse to see them because, again, that can be misconstrued.'It is not in your client's best interest to do anything that enrages the LIP, he says.
Mark Stephens, of Stephens Innocent, tells of one case his firm took on where the other side's behaviour served to 'wind up the litigant to fever pitch'.
They had done this by 'being completely aggressive, pompous lawyers, and trying to take advantage of the fact that they knew their way around the system and he didn't'.He adds: 'Any possibility that a commercial deal could have been worked out has gone out of the window.'Firms should never underestimate the determination of a LIP.
'Don't assume they'll go away because they won't.
It takes perseverance just to get the writ issued in the first place,' he says.All observers seem to agree that acting against a LIP means much more work for the firm.
Mr Stephens says: 'You have got to prepare your case and their case.'Mr Marsh reckons it means a third extra work if the opponent does not have a solicitor.
'For example, if you are the defendant, you would be mad if you left it to the litigant in person to prepare the papers and bundles for the hearing.
That would normally be the plaintiff's responsibility but we always do it, because they'd get it wrong.' And if the LIP does it and gets it wrong, the judge will only blame the firm, anyway, he adds.LIPs will tend to bombard the solicitor with masses of paperwork, which must all be scrutinised, however extraneous it appears, just in case there is anything which is relevant, he says.Mr Stephens says the litigant may have a good point somewhere buried in his case, even though he is arguing a spurious point.
If you do not find it, the court may do it for you, he warns.
'You will get to court and the judge asks a question which brings the good point spilling out.
You must do far more research than usual if you don't want to suddenly find yourself taken by surprise.'
No comments yet