Tips for dealing with Litigants in Person
This article provides some tips to bear in mind when dealing with Litigants in Person and a reminder of a number of pieces of guidance, to assist in-house teams in dealing with Litigants in Person in disputes or court/tribunal proceedings.
This article is taken from July's public matters newsletter. Click here to view more articles from this issue.
This article provides some tips to bear in mind when dealing with Litigants in Person and a reminder of a number of pieces of guidance, to assist in-house teams in dealing with Litigants in Person in disputes or court/tribunal proceedings.
Litigant in Person: an individual, company or organisation that has rights of audience and is not represented in the courts of England and Wales by a solicitor or barrister.
Recent cuts to legal aid, the increase in the small claims limit and ongoing austerity are all factors which have triggered the number of Litigants in Person appearing in courts and tribunals to increase.
Dealing with Litigants in Person can sometimes be a frustrating and time-consuming experience. Some Litigants in Person have a working knowledge of court procedure and require little additional assistance in representing themselves, but other Litigants in Person can cause real difficulties. Maintaining that balance of treating Litigants in Person fairly while also acting in the best interests of your client can be a minefield. It can be difficult to know what you should or should not say or do and you might even find yourself being subjected to rude, unpleasant or even aggressive conduct or behaviour.
Duties when dealing with Litigants in Person
A lawyer owes a duty to his/her client and also to the court and the administration of justice. The two duties may conflict where the lawyer is under a duty not to mislead the court but in doing so, the lawyer is, for example, obliged to present documents to the court which adversely affect or undermine the client’s case. Where there is such a conflict, the lawyer’s duty to the court must prevail.
When it comes to dealing with third parties, lawyers must not take unfair advantage of third parties, including Litigants in Person. Behaviour which might constitute the taking of unfair advantage includes bullying, the making of unjustifiable threats, misleading behaviour, claiming a sum which cannot properly be claimed or demanding something which cannot properly be demanded.
However, using the law and legal procedure effectively against a Litigant in Person because you have the knowledge/skills to do so is not taking unfair advantage. Contrary to what some Litigants in Person may think, there is also no obligation to assist a Litigant in Person to run their case or to take action on their behalf. So what exactly should you do?
Some tips and suggestions
Explain
Explain but don’t advise. Explain what the Litigant in Person needs to do next, refer them to the Civil Procedure Rules where necessary and try to ensure they understand the next steps. For example, you might tell a Litigant in Person that they need to file and serve witness evidence by a certain date otherwise they may not be able to rely on that witness evidence at trial. You might also refer them to the relevant provisions of the CPR and suggest that they take legal advice. However, you should not advise the Litigant in Person what they should cover in their witness evidence nor provide them with a template witness statement to use – this would be assisting the Litigant in Person to run their case.
Communicate
When communicating with a Litigant in Person, ensure you are professional, co-operative and courteous. Perhaps at the start of the matter you could send the Law Society’s ‘Notes for Litigants in Person’ to the Litigant in Person, so that they are clear from day one what they can and cannot expect from you. Try to avoid unnecessary or inflammatory language and arguments. Avoid legal jargon where possible and ensure your language is clear. Encourage the Litigant in Person to seek independent legal advice, at the outset of the dispute and at appropriate stages as the dispute progresses.
You are under no obligation to accept or tolerate behaviour from a Litigant in Person which is abusive, aggressive or unacceptable in some other way. Litigants in Person can often become frustrated that lawyers are not able to respond to them immediately or deal with their correspondence straight away. You are under no obligation to respond to a Litigant in Person immediately but you might instead choose to acknowledge receipt of the Litigant in Person’s correspondence, explain that you need to consider it and take instructions and confirm that you will get back to them when you can, perhaps giving an indication of when that might be. This approach will hopefully satisfy the Litigant in Person that you have received their correspondence and are dealing with it.
Prepare
Do not assume that the Litigant in Person will take the usual steps in the court/tribunal process which a represented party would. Be prepared to be responsible for hearing bundles and take conduct of drawing up and sealing orders, even if this would not happen if the Litigant in Person were represented. Think about how you might assist the court by taking responsibility for tasks/actions which a Litigant in Person is unlikely to complete. Make sure you serve documents correctly and on time. To protect yourself and your client, take a note of any conversations with the Litigant in Person so there is a record of what was discussed and when. Try to give plenty of notice to the Litigant in Person of applications, arguments and/or submissions if you can, to minimise the risk of surprises.
Anticipate
Anticipate that the Litigant in Person might request adjournments or make applications for extensions of time. If you have a hearing or trial coming up, consider whether a hearing might take longer than usual because the other party is a Litigant in Person and try to anticipate likely issues which might arise during hearings.
Guidance
If in doubt about how you should proceed in a scenario concerning a Litigant in Person, take a look at the Law Society’s Guidance.
If you are really unsure how you should proceed, run your situation past a colleague, sleep on it, take some time to think about the options available to you or give us a quick call to discuss. That way, you stand the best chance possible of ensuring you maintain that balance between acting fairly towards the Litigant in Person but also in the best interests of your client.
Discover more
You may be interested in...
Opinion
Vicarious liability of amateur sports teams for player on player injuries
Legal Update
Part 36 combined offers – when are they beaten?
Press Release
Browne Jacobson’s patent litigation team praised for being “dynamic” and a “major player” in IAM Patent 1000 guide
Legal Update
Employment alternative dispute resolution
Legal Update
Insolvency practitioners and trustee immunity
Guide
How to manage supply contracts and avoid disputes
Press Release
Browne Jacobson grows inheritance and trust dispute practice with partner hire
Legal Update
Subsidy control lessons to be learnt from Bulb
Legal Update
Vicarious liability – don’t overlook the importance of close connection
Opinion
Practical points from High Court ruling that Tesco has infringed Lidl’s IP rights in its famous yellow circle logo
Published Article
O Shaped mindset when working with witnesses
Opinion
Mediation – remote or in person?
Opinion
Confirmation of Acas early conciliation in the context of multiple claim forms
Published Article
ClientEarth claim may expand scope of directors' duties
Legal Update
Embargoed judgments: A professional word of caution
Press Release
Browne Jacobson’s intellectual property lawyers ranked experts in World Trademark Review guide 2023
Legal Update - Public matters newsletter
Public matters - January 2023
Opinion
Civil court litigation 2023: Reforms on the horizon
Legal Update
Settlement agreements – what are the limitations?
Settlement agreements are commonplace in an employment context and are ordinarily used to provide the parties to the agreement with certainty following the conclusion of an employment relationship.
Legal Update
Five “takeaways” in claims against mortgage brokers following Taylor v Legal & General Partnership Services Ltd [2022] EWHC 2475 (Ch)
Claims arising from interest-only mortgages have been farmed in volume. Many such claims to date have sought to drive a narrative that interest-only mortgages are an inherently toxic product and brokers were negligent simply for suggesting them. Taylor is a helpful recalibration, focussing instead on what the monies raised by the mortgage product were being used for and whether the client understood the inherent risks.
Opinion
The Future of Mediation
Legal Update
Trigger happy when directors’ duties are the target?
In a judgment handed down yesterday the Supreme Court has affirmed that a so called “creditor duty” exists for directors such that in some circumstances company directors are required to act in accordance with, or to consider the interests of creditors. Those circumstances potentially arise when a company is insolvent or where there is a “probability” of an insolvency. We explore below the “trigger” for such a test to apply and its implications.
Legal Update
The Retained EU Law
Created at the end of the Brexit transition period, Retained EU Law is a category of domestic law that consists of EU-derived legislation retained in our domestic legal framework by the European Union (Withdrawal) Act 2018. This was never intended to be a permanent arrangement as parliament promised to deal with retained EU law through the Retained EU Law (Revocation and Reform) Bill (the “Bill”).
Legal Update
Failure to comply with PD57AC — it can be costly!
Practice Direction 57AC (“PD57AC”) relates to witness evidence in trials and explicitly applies only to the Business and Property Courts. It applies to existing proceedings in which the witness statements for trial are signed on or after 6 April 2021.
Opinion
Sequana: Supreme clarification on the duty owed to creditors
The Supreme Court has unanimously dismissed the BTI v Sequana appeal and reviewed the existence, content and engagement of the so-called ‘creditor duty’; being the point at which the interest of creditors is said to intrude upon the decision-making of directors of companies in financial distress.
Legal Update
Common AI related technology project disputes and how to prevent them
The increased use of artificial intelligence (AI) is revolutionising the way businesses operate and is having a disruptive impact in sectors that have traditionally been slow to modernise.
Legal Update
The Civil Justice Council’s (CJC) proposed reforms to the Pre-Action Protocols (PAPs) and the possible mandatory ADR gateway. What could this mean for your case?
In November 2021, The Civil Justice Council’s published its interim report on proposed changes to the current Pre-Action Protocols, which included a mandatory Alternative Dispute Resolution (ADR) gateway. In this article, we look at proposed reforms and consider what this could mean for your case.
Opinion
Job applicant receives settlement due to unlawful age discrimination at interview
Janice Walsh applied for a job with Domino’s Pizza, hoping to secure a role as a Delivery Driver. However things quickly took a turn for the worse during her initial interview, with the very first question that she was asked relating to her age. Ms Walsh was ultimately informed that she had not been successful in her application.
Published Article
Sole director decisions: Another perspective
Opinion
Covid Rent Arrears: Cinema operators’ appeals dismissed
The Court of Appeal has dismissed two cases regarding rent arrears accrued during the Covid lockdowns. The cases are London Trocadero (2015) LLP v Picturehouse Cinemas Ltd and Bank of New York Mellon (International) Ltd v Cine-UK Ltd.
Opinion
Proceed with caution – covenants in franchise agreements
In the recent case of Dwyer (UK Franchising) Limited v Fredbar Limited and ano’r [2022] EWCA Civ 889, the Court of Appeal considered the reasonableness of restrictive covenants in a franchise agreement.
Legal Update
The Damages Claims Portal - A brief introduction for clients
Opinion
Wide interpretation of “detriment” caused victimisation claim to succeed
The Employment Appeal Tribunal (EAT) decision in the case of Warburton v The Chief Constable.
Opinion
Restrictive Covenants – are changes coming?
Restrictive covenants are widely recognised as a complex area of employment law that is of key importance to many organisations. However more recently, they have become a hot topic with the Government launching their consultation.
Legal Update
Aarhus legal costs in environmental claims
Opinion
Are whistleblowers entitled to keep their employer’s confidential documents?
In Nissan v Passi, the High Court recently considered the issue of an employee retaining confidential documents belonging to his former employer in the context of the employer’s application for an injunction seeking the return of such documents from the employee.
Legal Update
Four top tips to avoid disputes when entering into service level agreements with suppliers
We regularly encounter disputes relating to Service Level Agreement provisions - here we provide four top tips that you can use to minimise disputes.
Opinion
Revisions to the Highway Code and potential impact on civil liability
The Highway Code has had its first major revision since 2007. Amongst several changes, a new hierarchy has been created, with road users who are most likely to cause harm having the greatest responsibility to reduce the threat they may pose to other road users (rule 204 of the Code).
Legal Update - Shared Insights
Shared Insights: Preparing for 2022 – the big issues for legal teams across health and social care
We were delighted to be joined by Dr Nigel Sturrock, Regional Medical Director for the Midlands at NHS England and NHS Improvement. He gave an overview of the pressures placed on the NHS by the pandemic, including the impact on urgent and emergency care, elective procedures and staffing.