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Litigants in Person: Essential new guidelines

Print publication

02/07/2015

Essential new guidelines for lawyers have been issued in response to increasing numbers of individuals representing themselves in court. Walker Morris’ Rebecca Courtney explains how the guidelines can help to ensure the smooth running of cases involving litigants in person.

Overview

The Bar Council, The Chartered Institute of Legal Executives (CILEx) and the Law Society have issued new guidelines to assist lawyers when dealing with litigants in person (LiPs). The guidelines have been prepared in response to the growing number of individuals representing themselves in court due to the much-documented large scale cuts to legal aid funding and recent increases in court fees. Despite often having little knowledge of the court system and the applicable law, LiPs are forced to self-represent, which can cause challenges for both the opposition and the court.

We know from experience that there is no single type of LiP.  The guidelines encourage lawyers not to view LiPs as ‘a problem’ or to make assumptions about the merits of a LiP’s case simply on the basis that they have not obtained representation.

The guidelines are intended to offer practical advice to lawyers on good practice that is broadly applicable across the civil and family courts and tribunals. They also cover McKenzie friends and include a list of triggers which should prompt lawyers to raise concerns about their presence.

Guidelines and their effects

The main points are:

  • A professional, co-operative and courteous approach should be adopted at all times. However this does not mean that unacceptable behaviour from a LiP should be tolerated.
  • Initial contact (and contact at any other suitable stages in a dispute) should recommend that independent legal advice is sought or should refer the LiP to other advice or support agencies.
  • Communication should be clear and the use of technical language or inflammatory words avoided. Lawyers should refrain from any behaviour which could be deemed as taking an unfair advantage, for example claiming what cannot be properly claimed and should avoid unnecessary arguments or assertions.
  • The court may ask the represented party to prepare bundles and other documents even though they are not the party with responsibility for the same, in the interests of fairness and justice. This may result in additional costs being incurred by the represented party and appropriate advice should be given.
  • LiPs should be made aware of the correct procedure and their attention drawn to any particular rule which is relevant. It should be remembered that lawyers are under duties to help in the administration of justice overall and, ultimately, to assist the court as much as possible.
  • The represented party should be willing to accommodate requests for adjournments or extensions to ensure that LiPs are given every opportunity to present their case.
  • The consequences of non-compliance with an order should be made clear. The court may be less sympathetic to a LiP who has received clear guidance, on or a reminder of, the consequences of a breach of an order, than one that has not.
  • Consideration should be given as to whether a LiP is vulnerable and whether this should be brought to the Court’s attention.

WM Comment

Legal advisors and their clients should have these guidelines in mind when dealing with LiPs and should always consider whether the court would approve of the manner in which they are conducting the litigation. The guidelines do not, however, provide LiPs with carte blanch to disregard the court rules, nor do they allow LiPs any special status in relation to procedural matters or relief from sanctions. The fact that a party is a LiP will not be a reason for disapplication of the rules was recently upheld in the case of Chadwick (Trustee in Bankruptcy of Anthony Burling) v Burling [2015] EWHC 1610 (Ch) (8 June 2015).

The guidance highlights that a potential rule change, to clarify the court’s powers when dealing with LiPs, is under consideration by the Civil Procedure Rules Committee. This is expected to be introduced later this summer and Walker Morris will report any developments.

In the meantime, the best course is for lawyers and represented parties to positively engage with LiPs from the outset, as this can help to overcome the majority of challenges. For further advice and top tips, please see our recent article: http://www.walkermorris.co.uk/when-vexatious-litigant-good-thing.

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