Swingeing cuts to legal aid; vastly increased court fees; a higher small claims limit, the “unbundling” of legal services... No wonder most courts and tribunals are dealing with growing numbers of parties who are unrepresented for some or all of the court process. Litigants in person (LiPs) create challenges for the judiciary and the legal professions alike. To quote the Master of the Rolls, the main challenge for our justice system is “to make sure that everyone is treated equally, fairly and impartially and according to the law”.
For practitioners, this can only raise the tightrope we walk between acting in our clients’ best interests, and our paramount duty to the court and the administration of justice. How much can we be expected to help a LiP whilst also progressing or defending our client’s claim to the best of our ability?
To help resolve this conundrum, The Law Society, CILEx and the Bar Council have recently issued the litigants in person: guidelines for lawyers. This article focuses on the guidelines from a solicitor's perspective.
The guidelines set out good practice for lawyers when dealing with a LiP. They also include notes for lawyers to send a LiP, explaining what they can expect from us, and notes for us to send our clients, explaining how we are required to act towards a LiP.
Solicitors are required “not to take unfair advantage of third parties” and, in particular, not to take unfair advantage of an opposing party’s lack of legal knowledge (Chapter 11, SRA Handbook).
According to the guidelines, “unfair advantage” refers to behaviour that any reasonable lawyer would regard as wrong and improper, such as bullying, threatening, deceitful or misleading behaviour, or claiming/demanding what cannot be properly claimed/demanded. However, knowing and using law and procedure effectively is (reassuringly) not viewed as taking unfair advantage.
The guidelines emphasise that lawyers are not obliged to help a LiP run their case, or to take any action on their behalf, and flag up that by doing so lawyers may be failing in their duties to their clients. So, while we can’t take advantage of them, we must not be too helpful either.
Communication is key: keep it clear, concise, considered, co-operative and courteous. We should recommend that the LiP takes independent legal advice, and point them to other advice and support agencies (a list of which is helpfully included).
We can take some further, simple steps both to make a LiP’s life (marginally) easier and to reassure the courts that we take our court duties seriously. For example, supplying a LiP with links to the relevant Pre-Action Protocol or Civil Procedure Rule; spelling out the consequences of non-compliance; possibly even reminding them of an approaching deadline. Be flexible too: remember that LiPs will probably not have any administrative support and may be fitting a case round their work.
If it is clear to a LiP what they need to do at each stage and why, this may help keep the litigation moving at proportionate cost. The guidelines also suggest that a court may give a LiP less leeway if they have been reminded of their obligations.
Being required to “help” your opponent may raise a client’s eyebrow (or two). It is crucial that we explain to our clients that we have a professional duty to the court which outweighs our obligations to them, and that the court may require us to give procedural assistance to a LiP in the interests of fairness. It may also help to list the potential benefits to the client: reduced hearing times, fewer delays and adjournments, and therefore lower costs.
Judges have a duty to further the overriding objective by actively managing cases. This may involve a greater “degree of latitude” for a LiP than for a represented party. That said, recent cases show a “less indulgent approach to non-compliance” by LiPs (Elliott v Stobart Group  EWCA Civ 449, Chadwick v Warren [2015 EWHC 1610 (Ch)): all the more reason to explain to your unrepresented opponent what his/her duties are!
We can help the court by being realistic: suggesting or agreeing simple measures such as extra directions hearings, by telephone where practical, and asking for the case to be reserved to one judge. Similarly, asking the court to identify or approve a list of issues, explain what evidence is admissible, and clarify the terms of any order made, may work to the represented party’s advantage in the long run.
Rumour has it the CPR will be amended soon to cover the courts’ powers when dealing with LiPs. In the meantime, practitioners should use the safety net provided by the guidelines and the relevant court guides.