Facing an unrepresented party in court is becoming the norm rather than an exception for some solicitors; Beth Forrester provides guidance for handling this situation.
Are you a gymnast? You might be more of one than you think if you’re an advocate – balancing your duty to your client and the court is one thing but the balancing act is becoming even harder. This is because solicitors are increasingly facing an opponent who is not another solicitor, nor a legal executive or barrister, but a litigant in person (LiP).
Many imagine that people decide to litigate in person because they have failed to accept the advice of the all-knowledgeable lawyers. However, due to the legal aid cuts – which have drastically changed the landscape in the civil and family courts – LiPs are on the increase and in some areas are (anecdotally) becoming the norm rather than the exception
There are very important questions which solicitors facing an LiP need to answer, such as, ‘How must I act?’ Such is the awareness about the impact of LiPs that guidance was published earlier this summer by the Law Society, in conjunction with the Bar Council and the Chartered Institute of Legal Executives (CILEx).
This document notes that there are many types of LiP: some are very familiar and confident with the legal process, while others have little to no understanding of the environment or the options available to them. Both types of LiP can pose difficulties for a solicitor, whose primary duty is to the court and, subject to that, their client.
Top ten tips
- Explain the position to your client (professional or lay) and the implications that this may have for your matter;
- On initial contact with the LiP, and appropriately thereafter, recommend that they seek independent legal advice or contact the appropriate support agencies;
- Always adopt a professional, co-operative, and courteous approach;
- Take extra care to communicate clearly, without legal jargon or technical language so far as possible;
- Accept that communication from LiPs may be emotive, repetitive, or hostile. However, abusive communications should not be tolerated;
- Ensure that you do not take unfair advantage of facing an LiP; however, using your legal knowledge and training for your client’s benefit is permitted;
- In court proceedings, if possible, advise the court ahead of a hearing that an LiP will be attending (although this may result in extra work for the represented party to assist the LiP);
- Familiarise yourself with article 6 of the Human Rights Act and ensure that you are assisting the court in complying with this regarding the LiP;
- If speaking to an LiP outside of court, ensure that there are others present and make a note of such discussions as soon as practicable; and
- Finally, accept that a degree of leeway may be granted by the court to LiPs. However, consider what can be done to ensure compliance, such a clear drafting, reserving the matter, and alerting a LiP if it looks likely that a direction will be breached.
Beth Forrester is a social welfare solicitor and a Law Society Council member for junior lawyers.
This article was first published by Solicitors Journal on 4 August 2015, and is reproduced by kind permission.