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litigants in person: guidelines for lawyers

20 July 2015

It comes as no surprise that there has been a surge in the number of people attempting ‘do it yourself’ justice in civil courts. The cuts to legal aid, hike in court fees, increase in the small claims limit and the fact that CFA success fees are now payable out of damages awarded have all contributed to this increase in litigants in person (LiPs) representing themselves in court.

In response, a 28 page document has been issued (the Guidelines), aimed at giving practical advice and guidance to lawyers dealing with LiPs. The Guidelines have been prepared jointly by the Bar Council, CILEx and the Law Society and can be found here.

The Guidelines discuss the relationship between the client’s interest and the interests of the administration of justice, and the extent to which a lawyer can properly provide assistance to a litigant in person.

Key points

  • Lawyers should at all times adopt a “professional, co-operative and courteous approach” and communicate “in a manner of which the court would approve”.
  • Lawyers should not have to tolerate unacceptable behaviour from an LiP, nor should an LiP have a right to expect calls and correspondence to be responded to immediately.
  • In the initial stages of contact with an LiP, lawyers should recommend that they seek independent legal advice or refer the LiP to other advice or support agencies.
  • Technical jargon and inflammatory language should be avoided.
  • Advice should be given to clients about the possibility of additional costs if the court orders the represented party to prepare bundles and orders, even if this responsibility would not normally fall upon them.
  • Lawyers have a duty to the court first and foremost, and so must draw attention to any relevant rule.
  • The consequences of non-compliance with a court order must be made clear. The court is more likely to have sympathy for an LiP if they received no guidance on, or reminder of, the requirements of a court order.
  • If an LiP could be considered vulnerable, this should be brought to the attention of the court.
Much of the practical advice given will be seen by many lawyers as common sense. However, it will be worth litigators taking the time to familiarise themselves with the salient points contained in the Guidance, as the number of people representing themselves in court does not seem likely to decrease any time soon.

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