piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Guidance as to Litigants-in-Person, a sign of the times?

The Bar Council, Law Society and Chartered Institute of Legal Executives has produced some joint guidance for lawyers in how to conduct themselves towards a litigant-in-person. The Guide (available at http://bit.ly/1IkTPig) remind practitioners of their professional obligations and that the growing rise in unrepresented parties should be regarded as a sign of the times, rather than a sign of there simply being more vexatious litigation. It recognised that the increase in litigants-in-person may lead to an increased burden of work upon a represented party, ranging from the practical production of bundles, to the degree of procedural assistance such a party ought to offer.   The Guidance suggests (amongst other key points):   You should take care to communicate clearly and to avoid any technical language or legal jargon, or to explain jargon where it cannot be avoided: a LiP who is already feeling at a disadvantage may be further intimidated and antagonised by the use of such language.   You should take extra care to avoid using inflammatory words or phrases that suggest or cause a dispute where there is none, or inflame a dispute, and avoid expressing any personal opinions on the LiP's behaviour…   If you speak to a LiP outside court it is generally wise to do so in the presence of a colleague, if possible. It would be wise in any event to make a note as soon as practicable of any material explanation or assistance which you have given to a LiP.   If you are negotiating a settlement it would be more appropriate to say ‘are you prepared to agree to…’ rather than to say ‘the courts in this situation would never agree to x, so I suggest that you agree to….’. The latter approach might be seen as unfair to the LiP, even if legally accurate.   Where a LiP is a defendant to proceedings and no other pre-action protocol applies, the Civil Procedure Rules (CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention to paragraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction. You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and may give rise to a liability for costs.   Where a specialist protocol applies and more detailed pre-action procedures are required, a LiP will ultimately be subject to the same obligations as a represented party. You should consider sending a copy of or a web-link to the relevant protocol to a LiP when first contacting them about a claim.   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.   It will be important to explain to your client why you are giving assistance to the opposing party, if this is not made clear in court by the judge. You should emphasise that you have a professional duty to the court and that in the interests of fairness the court may require you to provide procedural assistance to a LiP.

Litigants in Person, the Judges and You!

      According to the government's own figures, 623,000 of the 1,000,000 people who previously received public funding each year ceased to be eligible for such assistance when the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 came into force on 1 April 2013.   On 5 July 2013 the Judicial Working Group on Litigants in Person (LIPs) published its report on how the judiciary proposes to deal with the massive increase in LIPs in courts and tribunals. It merits careful reading by all practitioners.    www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf    The challenges are immense and will be further increased by the impending rise in the financial limit for the small claims track from £5,000 to £10,000. A doubling of this limit will inevitably mean more cases fall within the small claims track where public funding is not available. As for alternative sources of assistance, the Citizens Advice Bureau estimates that local advice and community based services will lose over 77% of their public funding.    In 2012, District Judge Richard Chapman, the immediate past president of the Association of Her Majesty’s District Judges observed that already:   “Judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 or the Family Procedure Rules 2010 and have breached most of the case management directions”.    The report recommends that the Ministry of Justice and Her Majesty’s Court and Tribunal Service should devote the necessary time and resources to producing, with judicial involvement, appropriate materials, including audio-visual materials, to inform LIPs what is required of them and what they can expect when they go to court as well as reviewing the information that is currently publically accessible on the various judicial websites – see [2.8] and [3.49-3.52] of the report.   The Judicial College should also urgently assess the  feasibility of providing training on LIPs –  a sort of “Quick Lit” course for judges – together with developing a  “litigants in person toolkit” utilising the existing judicial guidance – see [2.9] and [4.9-4.19] of the report.   More far reaching proposals include:   1.      The inclusion in the CPR of a dedicated rule which makes specific modifications to other rules where one or more of the parties to proceedings is a litigant in person.  2.      The introduction of a power into Rule 3.1 CPR to permit the court to direct, where at least one party is an LIP, that proceedings should be conducted as a more inquisitorial form of process.  3.      The introduction of a specific general practice direction or new rule in the CPR to address, without creating a fully inquisitorial form of procedure, the needs of  LIPs in obtaining access to justice whilst enabling  courts to manage cases consistently – see [2.10] and [5.11] of the report.    The stark reality is that in some courts and tribunals LIPs will be the rule rather than the exception. This will inevitably slow down and drive up the cost of proceedings and take up valuable judicial time. Equally inevitably, the call will surely go out from the judges to practitioners at all levels for assistance in responding to the challenges that lie ahead.   Image – www.123rf.com

What's in a name?

  On 22 March, after 200 years of being called Cadbury, Kraft, the US food conglomerate which bought the Cadbury business in 2010, is changing its name to - Mondelez (pronounced mohn-dah-LEEZ) International.   The article I read suggests this means delicious world – “monde” coming, I suppose, from the French (or perhaps the Latin) for world and “delez” being a diminutive (or it could be “street” - I would need to check) for delicious. Apparently it is the result of suggestions by two different Kraft employees based in Chicago and Vienna respectively.   I was reminded of this when I read a thoughtful article in the Law Society Gazette on 5 April by District Judge Richard Chapman, the new president of the Association of Her Majesty’s District Judges.   http://www.lawgazette.co.uk/opinion/comment/solicitors-can-help-litigants-person-prepare-their-day-court   Judge Chapman reminds those who did not know that litigants in person are also changing their name - to self-represented litigants or SRLs.   SRLs are likely to feature increasingly in the courts. In November 2011 the Civil Justice Council published a helpful report on “Access to Justice for Litigants in Person”.   http://www.judiciary.gov.uk/about-the-judiciary/advisory-bodies/cjc   This is well worth downloading and filing as it contains amongst other goodies a “nutshell” guide for SRLs and in Appendix 2 “Suggested Draft Guidance for legal professionals representing against a self-represented litigant”   The report points out in the Overview in Chapter 2 that “every informed prediction is that, by reason of the forthcoming reductions and changes in legal aid, the number of self-represented litigants will increase, and on a considerable scale. Such litigants will be the rule rather than the exception” (my emphasis).   This prospect clearly concerns Judge Chapman who says that “judges like me are spending more and more of our time having to deal with litigants who simply do not know the law, have never heard of the Civil Procedure Rules 1998 … and have breached most of the case management directions”.   Any advocate is already under a duty to do what they reasonably can to ensure that an SRL has a fair opportunity to prepare and put his or her case. However, the likelihood is that Judge Chapman and other judges at all levels will increasingly be looking for help from lawyers in managing the changes which will follow the new “funding landscape”.    As Judge Chapman ruefully observes:   ”A new name but old problems”.   [Image - thechocolatereview.net]