Mediation Guide: Russell Evans

By Russell Evans, Manager of Resolve UK[i]

Mediation

Mediation is a private and confidential process focused on dispute resolution involving the appointment of a qualified Mediator to assist all parties to resolve their dispute. Mediation is highly effective in resolving disputes and is encouraged by the Courts & Judiciary. It often saves significant cost, stress and time.

Mediation Process

The mediation process is flexible. It can be designed to fit the circumstances of the dispute and the parties. It will usually involve private meetings between a party and the Mediator to discuss and consider issues and explore settlement options as well as joint meetings where these are approved by the parties. Comments made by any party in this process are confidential and can not be repeated in court. The process is designed to enable parties to TALK, THINK & EXPLORE SOLUTIONS in a safe environment. Settlement is concluded by a Settlement Agreement set out in writing which is duly signed.

Pre Action Protocols

Pre Action Protocols & Practice Directions are in place requiring parties to consider Mediation prior to going to court. https://www.justice.gov.uk/courts/procedure-rules/civil/rules/pd_pre-action_conduct

Para 1. Pre-action protocols explain the conduct and set out the steps the court would normally expect parties to take before commencing proceedings.

Para 8. Litigation should be a last resort. As part of a relevant pre-action protocol or this Practice Direction, the parties should consider whether negotiation or some other form of ADR might enable them to settle their dispute without commencing proceedings.

ADR

ADR means Alternative Dispute Resolution. It is an alternative to determination by the court. Mediation is the most effective and most common form of ADR process used.

Court Rules

The Civil Procedure Rules apply to all cases where court proceedings have been issued. Parties are obliged once again to consider mediation.

https://www.justice.gov.uk/courts/procedure-rules/civil/rules

1.1

(1) These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly and at proportionate cost.

(2) Dealing with a case justly and at proportionate cost includes, so far as is practicable –

(b) saving expense;

(c) dealing with the case in ways which are proportionate –

(d) ensuring that it is dealt with expeditiously and fairly;

(f) enforcing compliance with rules, practice directions and orders.

1.2 The court must seek to give effect to the overriding objective when it –

(a) exercises any power given to it by the Rules

1.3 The parties are required to help the court to further the overriding objective.

1.4

(1) The court must further the overriding objective by actively managing cases.

(2) Active case management includes –

(e) encouraging the parties to use an alternative dispute resolution procedure

Sanctions for Failing to Mediate

The Court has power to and frequently imposes cost sanctions against parties who refuse to mediate.

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

Lord Justice Briggs:

1. An unreasonable refusal to participate in ADR has, since 2004, been identified by this court as a form of unreasonable conduct of litigation to which the court may properly respond by imposing costs sanctions: see Halsey v Milton Keynes General NHS Trust [2004] 1WLR 3002.

2. The Halsey case was the first in which the Court of Appeal addressed, as a matter of principle, the extent to which it was appropriate for the court to use its powers to encourage parties to civil litigation to settle their disputes otherwise than by trial.

24. In the nine and a half years which have elapsed since the decision in the Halsey case, much has occurred to underline and confirm the wisdom of that conclusion.

34. In my judgment, the time has now come for this court firmly to endorse the advice given in Chapter 11.56 of the ADR Handbook, that silence in the face of an invitation to participate in ADR is, as a general rule, of itself unreasonable.

56. Finally, as is recognised by the weight placed on the judge’s decision in the passage in the ADR Handbook to which I have referred, this case sends out an important message to civil litigants, requiring them to engage with a serious invitation to participate in ADR ……. The court’s task in encouraging the more proportionate conduct of civil litigation is so important in current economic circumstances that it is appropriate to emphasise that message by a sanction which, even if a little more vigorous than I would have preferred, nonetheless operates pour encourager les autres.

Attempts to Avoid Mediation

The court is very weary of attempts to avoid mediation and these are usually given a short shrift response. Indeed Mr Justice Turner in Laporte characterised refusing to mediate as a ‘high risk’ strategy.

Burchell v Bullard (2005) EWCA 358

Lord Justice Ward

41. The stated reason for refusing mediation that the matter was too complex for mediation is plain nonsense.

Lord Justice Rix

50. I agree that mediation here would have had a reasonable prospect of success and that a party cannot rely on its own obstinacy to assert that it would not.

Laporte & Anor v The Commissioner of Police of the Metropolis [2015] EWHC 371 (QB)

Mr Justice Turner quoting Mr Justice Lightman - Hurst v Leeming [2003] 1 Lloyd's Rep 379

53. ‘what appears to be incapable of mediation before the mediation process begins often proves capable of satisfactory resolution.’

Other Judicial Dicta

Burchell v Bullard (2005) EWCA 358

Lord Justice Ward

43. Halsey has made plain not only the high rate of a successful outcome being achieved by mediation but also its established importance as a track to a just result running parallel with that of the court system. Both have a proper part to play in the administration of justice. The court has given its stamp of approval to mediation and it is now the legal profession which must become fully aware of and acknowledge its value. The profession can no longer with impunity shrug aside reasonable requests to mediate. The parties cannot ignore a proper request to mediate simply because it was made before the claim was issued.

Lord Justice Rix

50. The court is entitled to take an unreasonable refusal into account, even when it occurs before the start of formal proceedings.

Oliver and another -v- Symons and Another [2012] EWCA Civ 267

Lord Justice Ward

53. It depresses me that solicitors cannot at the very first interview persuade their clients to put their faith in the hands of an experienced mediator, a dispassionate third party, to guide them to a fair and sensible compromise of an unseemly battle which will otherwise blight their lives for months and months to come.

Consequences of Failing to Mediate

PGF II SA v OMFS Company 1 Ltd [2013] EWCA Civ 1288

Sanction Applied - Party penalised £250,000 Costs

Laporte & Anor v The Commissioner of Police of the Metropolis [2015] EWHC 371 (QB)

Sanction Applied - Party penalised One Third of Costs

Rolf v De Guerin [2011] EWCA Civ 78

Sanction Applied - Party penalised All of Costs

C 2018 Resolve UK

(This note is intended for outline information purposes only. It does not constitute or purport to be legal advice)

Russell Evans is a Director & Immediate Past President of the Hampshire Law Society. He is a full time Mediator and has judged the Finals of both the UK & International Mediation Competitions.

At ReSolve UK we have experts in: Property Disputes/ Business Disputes/ Insurance Claims/ Partnership Disputes/ Employment/ Construction/ Professional Negligence/ Sport/ Music & Entertainment/ Shipping & Maritime/ Care/ International Trade/ Director & Shareholder/ Inheritance Claims & Probate/ Trusts & Estates/ Charities/ Workplace/

Russell Evans russell@resolveuk.co.uk Mob: 07986 550969

www.resolveukmediation.co.uk


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Mediation: Packing the Punches

By Russell Evans, Mediator & Lecturer

The Mediation Battleground: Getting to the Ring

After recently successfully concluding mediations for a world champion boxer, title contender and manager as well as a premiership football club, leading university and the Board of a Government Agency I have had cause not only for thought but time to reflect.

Mediations are focused on dispute resolution. Not all Mediations of course are the same. There can be many flavours and nuances and as experienced mediators will tell you similar disputes can play out in very different ways. As mediators we forever have to adapt to the circumstances and the situation which unravels before us.

There can of course be much pageantry and showmanship before the bell rings on the day of the mediation. Each mediation and indeed every fight comes with its own history.

And So the Bell Rings

And so the bell rings and we are off. In reality much mediation work has already been effected before the bell sounds. Parties of course can adopt many changes of position and stance: orthodox; south paw; counter punch as well as downright unconventional and sometimes even a jab, hook, cross and upper cut are displayed. There is frequently a sub plot. Mediations often unravel in intriguing ways. Merlin himself with his many potions and incantations may even be impressed; conjuring spells, directing focus, calming flashpoints.

Beyond the Scars

Mediations can certainly be challenging. They are certainly not a stroll in the park whether in London, Paris, Berlin or the leafier suburbs and can require a great deal of resolve and strength of purpose. Mediations often however present the best opportunity for parties to explore and resolve their dispute in the quickest, most diplomatic, least stressful and least injurious of ways. In any fight or gladiatorial contest both parties are invariably hurt and it is rare for any party to emerge unscathed. We can often lose sight of this amidst the emotional battle cries and the call to arms.

Surprises

Surprises and curve balls can abound and are often thrown into the mediation mix not only with new material disclosure but astonishing new revelations. It can often be as well to find this out before the ‘certainty’ of the trial. A recent revelation concerned a battling Lord, whistle-blowing as well as the Cabinet Office. Fortunately for all this did not play itself out on the front pages of the press.

High Noon

On occasion mediations have resembled more of a cold war James Bond spy plot rather than a classic exploration of issues and diplomatic engagement. The boxing mediation at times had all the atmosphere of the OK Corral albeit without colt 45s. The mediation concluded with lawyers and mediator apace marching up Chancery Lane and signing the settlement agreement in the street outside of our hallowed hall. One of the lawyers involved in the ‘boxing ring’ intended to wreak his wrath or more fortunately relief the following day on a racing circuit with or without the classic Aston Martin. James Bond eat your heart out.

The Beautiful Art: Using Diplomacy

As Mediators we are there to serve all parties, to use, adapt and adopt whatever mediation methods and techniques help the parties on their path to resolution. Mediation can sometimes be a shadowy world but one in which much can be achieved behind closed doors.

Finding a Language: Enabling Communication

As Mediators we often enable discussions to take place which would not ordinarily happen. We can facilitate discussions between parties, discussions between lawyers and indeed the release of documentation and information in a diplomatic way. Mediation provides the safety of confidentiality which surrounds the mediation process. Comments can be made to the mediator that you may not want a judge or indeed the other party to hear. Comments made at the mediation also can not be repeated in court. The court will often simply see the settlement fait accompli and in many cases the court process can be avoided altogether.

Protecting Confidentiality

Recent mediations have presented opportunities for both lead front and back page stories as well as opportunities to initiate further speculation and conflict. I have had numerous lawyers and parties tell me that there were no prospects of resolution only to be pleasantly surprised. Some combatants have even walked away linked arm in arm.

Beyond the Rules

Mediation is of course a part of every lawyer’s dispute resolution armoury and its consideration is mandated under both Pre Action Protocols and the Civil Procedure Rules. Its timely adoption can sometimes save not only months but years of heartache.

The Mediation World

What then of the Mediation World? Mediation is certainly high on Lord Briggs agenda as most will know. Some of you may even have had the pleasure of attending Lord Briggs talk in November 2017. The Civil Justice Council for its part has backed the presumptive use of mediation as set out in its 98 page report. At the CIArb Mediation Conference in September 2018 focus was placed on topics ranging from; high conflict parties; challenges and dilemmas to mediation mastery. We have sadly now lost one of the true mediation masters David Richbell a friend who a number of you will know.

I recently had the pleasure of attending another Talk at the Oxford University Policy Institute given by another friend Dr Nikita Chiu about War & Peace & Space. As a species we will certainly return to the stars and other celestial bodies. Mediation in Space however may be some way off. I don’t think that I will become an astronaut just yet.

Finding Solutions

On the earthly stage whether your dispute is commercial, property or contentious probate for some great institution or other greater cause we perhaps need to consider not only ADR but IDR ‘intelligent dispute resolution’. There may be fights to be had but often cleverer ways to achieve your goal. Even a boxer will pick his fights carefully.

Fighting the Good Fight

We are all fighters in our own way. Resolution of course can be worthwhile fighting for.

C 2018 Resolve UK

Russell Evans lectures on Mediation for the Law Society, RICS & CISI. He is a full time Mediator and has judged the Finals of both the UK & International Mediation Competitions.

Russell has conducted mediations involving ftse companies, government agencies, premiership football clubs, world sports champions, national charities with royal patrons as well as the family of a Law Lord.

Russell Evans russell@resolveuk.co.uk Mob: 07986 550969

Resolve UK: Ministry of Justice approved Mediation Provider

At ReSolve UK we have experts in: Property Disputes/ Business Disputes/ Insurance Claims/ Partnership Disputes/ Employment/ Construction/ Professional Negligence/ Sport/ Music & Entertainment/ Shipping & Maritime/ Care/ International Trade/ Director & Shareholder/ Inheritance Claims & Probate/ Trusts & Estates/ Charities/ Workplace/

Ministry of Justice Approved Mediators

Finding Solutions For You

www.resolveukmediation.co.uk


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Disclosure Working Group Press Announcement

We share the Disclosure Working Group`s latest update that was published at https://www.judiciary.uk/wp-content/uploads/2018/07/press-annoucement-disclosure-pilot-approved-by-cprc.pdf

Disclosure Working Group Press Announcement

We believe this is crucial for litigants in person.

 


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Preparing Your Bundle Online

diyLAW is grateful to Paul Sachs of www.caselines.co.uk for providing this brief but informative guide to bundling up your documents for court.

 


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Personal Debt Information

diyLAW is grateful to David Bloom of www.davidandgoliathdebtadvice.com for providing this video on personal debt information.

Please note this video is for information only and no reliance must be placed on it and that neither David Bloom nor diyLAW are responsible for any actions taken in consequence. The video has been recorded in 2014 and there have been some legal developments since then.


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Are you a victim of cyber-bullying?

Cyberbullying is defined as the use of ICT (information computer technology) to deliberately upset someone.  It is a particularly nasty and upsetting form of bullying and there are things you can do if you are a victim of this form of bullying.  The effects of cyberbullying can be serious; causing stress, a sense of isolation and at its worse can make you have suicidal thoughts.

Cyberbullying can take the form of malicious texts, Facebook messages, malicious e-mails from anonymous senders and photographs and video footage of you used inappropriately over social network sites.

If you are the victim of Cyberbullying through malicious texts and e-mails at work block the caller/sender and report the incident to your Manager or HR Department immediately. If your child is a victim of cyber-bullying and you think you may know who the perpetrator is, contact your child’s school immediately, as they normally have an established anti-bullying policy.

Under no circumstances reply to any inappropriate messages and don’t forget to SAVE any emails/IMs/text messages or print out/take a screenshot of the content on the internet as evidence.  GET IN CONTACT WITH YOUR SERVICE PROVIDER to report the user and ask them to remove the content.  If you feel threatened or in fear of your life contact the Police IMMEDIATELY.

While there is no specific criminal offence called cyberbullying, these acts can be criminal offences under a range of different laws to include the Malicious Communications Act 1988, the Protection from Harassment Act 1997, Section 127 of the Communications Act 2003 and Public Order Act 1986.

Cyberbullying is being taken very seriously by the Courts and Facebook was ordered to provide the identity of cyber bullies for more information

http://www.dailymail.co.uk/news/article-2156365/Nicola-Brookes-victim-internet-trolls-wins-High-Court-backing-reveal-identities-targeted-her.html.

If you have been or are a victim of cyber bullying you can bring criminal charges and a claim for personal injuries against the perpetrator.

Affordable Law For You do not provide assistance in respect of criminal matters but do feel   very strongly about this matter and if you need to get in contact with a Criminal Firm of Lawyers because you wish to bring charges against anyone who has committed such an act against you, contact the Law Society and ask them for details of Criminal Solicitors in your area.

 

Deborah Aloba

Affordable Law For You Limited


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Perceptions and Expectations of Litigants in Person

– A commercial Litigator’s perspective

This blogpost is written as a polemic. I hope to encourage some open and constructive debate on the subject of Litigants in Person (LiPs). It is not based upon any scientific research, but rather my general observation of things as a commercial Litigator, having dealt with many thousands of cases both defending, and bringing claims against LiPs, and in acting for them as a McKenzie Friend.

My focus in this blogpost is upon civil/commercial litigation and not criminal litigation. Although the logic may be the same, the factors for a bench of Magistrates, or a Judge to make a decision are based upon evidential burdens being far higher ‘beyond all reasonable doubt’, rather than on ‘a balance of probabilities’, as in civil cases.

During my career I have met many wonderful and varied LiPs.

Some perceived expectations:

You are right. The truth will come out in Court. The Judge and the Courts exist to see that the truth prevails. The Courts will punish those who lied. You will get everything you desire, even if you do not follow Court procedures properly, or comply with Court Orders or directions of Court. The case is simple, and should be over in a matter of weeks. If you win, you can expect to gain in costs the same amount as Lawyers charge, and therefore the case if won, is an investment.

Some likely realities to those perceived expectations:

You may be right, but just because you are, does not mean the Court will find in your favour either fully or partly. A number of perceptions of truth may come out in Court, but it is unlikely that both Parties in litigation will be right. If one person is right, someone else by deduction may be found wrong. The Court is interested in plausibility, and preference to credibility on a balance of probabilities in the eyes of the Judge, having regard to case law and statutes. A civil Court is not there to punish those who got it wrong. They are there to award damages and recompense, with awards of costs in favour of those who were deemed to have succeeded in a claim. That is different from a criminal court whose objective is to punish and to deter offending and re-offending. You very rarely get everything you ask for in a case. Some things that you ask of a Court may not be in their jurisdiction to award. Courts expect you to comply with Court Orders and directions of Court. Some cases are swift, and others are not. In the High Court, cases can last typically 12 months to 18 months, and sometimes longer depending upon complexity and Court availability for a trial date. There are restrictions on charges for LiPs, which may well be outdated, and seem unfair. Until the Law changes, the figures are relatively derisory.

Perceptions:

Generally speaking, no one wants to become embroiled in Litigation. Either they have been wronged, or someone has wronged them, and they demand justice.

There are not necessarily winners and losers in Litigation. You may win, but never enough. You may win, and have a Judgment in writing, but find that enforcement of the same is impossible, or that there are obstructions that prevent you being paid. You may lose, and feel the Court was against you. You may lose, even though you were right…or at least you believed you were right. Does the truth of the matter, matter? Or is it a case of who in the eyes of the Court is believed to be more right? After all, people who go to Court all believe they are right, and that if right is on their side, they will win. This is not so: The Court does their best to listen; to understand. Ultimately the Court makes a decision based upon their perception of the facts; their perception on the strengths or weaknesses of an argument; plausibility wins the argument on a balance of probabilities, which establishes the facts. Then the case law and the Statutes are applied, and a decision is made.

Someone’s World crashes. Our belief in the truth, when a Judge does not agree, causes resentment; conspiracy theories begin. One goes quite mad knowing the reality of the situation was not followed by the Court. Should you live with such a decision?

If I were asked such a question, I would ask for a full copy of the Court bundle, and a full transcript of the case, the Judgment, and the Judgment itself. I would tell you to move fast because you have only a limited time to appeal a decision, (sometimes 14 days, and sometimes 21 days, but generally the latter), which may be the right decision based upon the information and evidence placed before the Court at the time.

Can you take ’No’ for an answer? If not, and a variety of Judges have considered and re-considered your Appeal, and have all concluded against you, then you should know when ’No’ is the answer. Close the door on this chapter in your life and move on!

Why do I write in such a way? I am frustrated at seeing too many good people waste their lives pursuing their perception of truth and justice because a Court has not agreed with them. It becomes an illness; an obsession. What is it all for?

‘Aquila non capit muscas’ (`the Eagle does not bother with the mosquitos`). Do you want to be right or do you want to be happy?

Those who can’t take ’No’ for an answer, eventually find themselves on the receiving end of a Civil Restraint Order, having been branded a Vexatious Litigant.

My starting point would be to say it was likely that the Court got it right. Why? Judges are selected based on their sound judgment and perception; their ability to establish the facts and the issues. Are you as a LiP so important that a Judge would want to go against you, because of you? Is anyone ever that important that a Judge would take such a stance in favour of your opponent? From my experience of Judges, that has perhaps been a fair comment made by someone wronged, perhaps once in 15 years.

Let us briefly explore the costs: The cost financially, emotionally, psychologically? You do not just become embroiled as a LiP yourself. It affects your family, your friends. You become obsessed by the case. It eats you up. It gnaws away at you so that the entire focus of your life becomes the case. People tire of you. Your family ties are strained. Some divorce. Some become estranged from their friends and family. Everyone suffers when you take on a case yourself. There are few who have the discipline to cut off at the end of supposed business hours. For a LiP, what are your hours?

A Lawyer is paid to deal with your case. To take some of that angst away from you.

Emotionally, you as a LiP are subjective. You see things the way you see it. You have your own perception of things, your own interpretation of the Law, of procedure, and how those things should interact. Perhaps as a LiP, you feel that Court procedure is of no consequence, and the truth of the matter should be what the Court strives to learn and rule upon.

Lawyers ought to be objective. They should know the Law and the procedure. They should guide and lead you on what is and is not achievable. They should seek to persuade you as to what is a fruitless pursuit, and what issues you should or should not focus upon.

‘All things are subject to interpretation. Whichever interpretation prevails at a given time is a function of power and not truth’ – Friedrich Nietzsche

‘What you see and what you hear depends a great deal on where you are standing. It also depends on what sort of person you are’ – CS Lewis, The Magician’s nephew

’There are things known, and there are things unknown, and in between are the doors of perception’. – Aldous Huxley

A. Those who WILL NOT take legal advice:

There have been those who have been jilted by Lawyers who have over-charged or have promised them a certain outcome, which has not transpired. There are those who have gone to Court and have been disillusioned by the way the Courts have treated them and feel there is a conspiracy between Lawyers and the Courts to all protect themselves. There are those who cannot accept that a decision made by a Court is the right decision because it did not go their way. There are those whose perception of things is that Lawyers do not care about the client; They are more interested in how much they can run up a bill and lead a client a merry dance to achieve their goal of maximising profit.

A deep mistrust of the Legal system…a deep mistrust of Lawyers…a deep mistrust of Judges…a deep mistrust of Courts…. Of procedure…of case law…of Acts of Parliament…their human rights affected…the list goes on and on.

B. Those who CANNOT afford to take legal advice:

Their income or savings may be too significant that the threshold of Public Legal Funding/Legal Aid is overreached, or certain subject matters may not be covered for Legal funding. They want legal advice but have limited access to it via Pro Bono Centres, Citizens’ Advice Bureaux. These may be sufficient for straight cases, but not for complex cases.

C. Those who CAN afford to take legal advice, but appreciate they are limited as to their knowledge of procedure and the Law and may seek limited legal advice for that purpose:

Similar to ‘A’ above, but appreciate they require assistance with preparation of their cases and presentation in a way that the Court demands. Civil Procedure Rules 1998 govern the manner and way in which various Court directions must be complied with. Doing your best, without understanding or complying, will lead to non-compliance. The Courts will overall be courteous and give LiPs the benefit of doubt. The Courts will, in my observations, bend over backwards and have the patience of a Saint to deal with LiPs. They will give further time extensions. They will assist, or give LiPs guidance to comply. Ultimately if as a LiP you do not comply in terms of time, or content in what is asked of you, the Court will impose sanctions, which may be as harsh as debarring you from adducing evidence, or striking out your case/defence as your status may be. Rules and procedures are set with two things in mind:

  • i. For the Parties to understand and appreciate the issues between the Parties and to encourage resolution and settlement of a case without resorting to a full-blown Court trial;
  • ii. To set the case out in such a way that the Court can properly consider the evidence.

    As an aside, there is an implied interpretation that compliance with rules and directions of Court is synonymous with credibility and an acknowledgement that the Court decides.

    Non-compliance with Orders and directions could lead to a finding of being in contempt of Court. This can be punishable with a fine and/or imprisonment.

D. Those who CAN afford to take legal advice, but feel their knowledge and perception of the Law and procedure is perfect:

Maybe you can read and understand Civil Procedure perfectly well. Good luck to you if you can. Lawyers are, like LiPs, only human. They read the same books, and take in the same information. All is good. Good luck. Perhaps you are a LiP well versed in civil procedure and you win case after case. Perhaps you should think about being a Lawyer. For the vast amount of LiPs I have encountered, this is not the case.

I have encountered Lawyers who have been LiPs. As the adage goes: ‘A man who is his own lawyer, has a fool for a client’. With hindsight, although the procedure was of no concern, the ability to argue and consider the issues objectively was overtaken by the subjective emotion of being personally caught up in a case.

See ‘C’ above, and may the L-rd have mercy upon your soul.

My position:

I am first and foremost a Solicitor with over 15 years of post-qualification experience. I am a Solicitor-Advocate with higher rights of audience in both civil and criminal Courts. I am an officer of the Senior Courts of England and Wales.

The other titles I hold as Partner and head of Litigation at Darlingtons Solicitors LLP, or as a Board Member of the Association of Certified Fraud Examiners UK Chapter, or as an Associate Professor of Law at Brunel University, do not detract from the initial description of me.

My duty to my clients and the Court, and conflicts of interest that may arise or are likely to arise are set out in the Solicitors’ Regulation Authority, (‘SRA’), Code of Conduct, and my firm’s terms and conditions.

These duties to my clients are reinforced by my firm’s complaints procedure, my COLP (Compliance Officer for Legal Practice), my COFA (Compliance Officer of Finance and Administration), and failing this, the SRA.

My COLP and my COFA, the Courts, and the SRA reinforce these duties to the Court.

My charges and my costs are set out in my firm’s terms and conditions. I provide a service, and therefore there are implied terms as to the quality of service, fitness for purpose, and reasonableness of costs as set out in the Sale of Goods Act 1979 as amended.

My duties are broadly speaking as follows:

To act in the best interests of my client;

Not to mislead or deceive the Court;

Where do things go wrong between Solicitor and client?

My analysis of a case according to the facts and documents you provide are based on experience, knowledge of Judge’s perceptions of issues, case law, statutes, and interpretation of it. However, there is no certainty in the outcome of an application or of a trial itself. Lawyers can and should provide you with a costs and risks analysis at varying points during a case, dependent upon new facts being discovered, or documentation which is ‘at odds’ with my client’s case as presented to me, which dictates a new analysis of the case. Usually, at the point where documents are exchanged between the Parties, or at exchange of Witness Statements, further consideration and review must be made.

Typically at that point, a client is quick to recall how a case which looked good on the face of it when first presented, now looks less or more strong as the case may be. Again, a good Lawyer should point out that independently he/she should conduct the review objectively, and not in your favour just because you want it to be so.

Sometimes, an application is lost. Think of it as a battle, but not the overall war. Applications are won and lost. Sometimes there is a cost Order that you have to pay. Your expectations are that if you are right overall, you should not pay any costs. Costs Orders must be complied with, or else you will feel the wrath of the Courts.

No one likes paying legal costs. They are a necessary evil. The business of a Lawyer is to charge fees to make a living. These are generally based upon time. If you feel you need to speak to your Lawyer 20 times a day, expect to pay for those 20 calls at a minimum usual time of 1 unit = 6 minutes, so 20 calls would be a minimum of 2 hours of time.

If things do not go as quickly as the case you feel should go, there are a number of reasons for this: The other side may not have been ready and could have asked for extensions of time. Things like this happen. Not everyone is efficient. You may not have paid for the Lawyer to do the work, in which case the work will not have been done in time. Have you given full instructions? Sometimes a client does not give clear instructions, which causes delay. Courts? Sometimes a hearing is listed late because the Court does not have space or time to accommodate any sooner.

My conclusion is that it is your prerogative to be a LiP, but should always seek legal advice from someone independent of your case, even if it is to review and consider your case or to prepare your Court bundle and assist you with documents required by the Court.

 

This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

 


When you think you are right and everyone else is wrong

Professor David Rosen is a solicitor-advocate, partner and head of litigation at Darlingtons Solicitors LLP. He is strategic legal advisor for diyLAW, a member of the Society of Legal Scholars amongst other memberships, and honorary professor of law at Brunel University where he regularly lectures on practical legal skills and procedure, and advocacy amongst other subjects.


Paying LiP service to April fools

diyLAW is happy to reproduce an article by The Incorporated Council of Law Reporting, which we found interesting and informative, and more importantly, we believe will assist all Litigants in Person.

“It’s often said that a lawyer who represents himself in court has a fool for a client.*
But a layperson who cannot get legal aid or insurance to cover the cost of a lawyer is not a fool – merely a victim of the new regime under LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act 2012) which (no doubt by sheer coincidence) came into force on April Fool’s Day this year.

Such a person, if forced into a position where they have to represent themselves in court, is generally known as a “litigant in person” (LiP). An alternative description, “self-represented litigant” (SRL) was proposed in recent years but has not found general acceptance and last month the Master of the Rolls, Lord Dyson, issued Practice Guidance clarifying the position and re-adopting the traditional LiP description.

Stark warnings have been issued about the likely effects of the severe cutbacks in legal aid to which LASPO will give rise. The most obvious is a massive rise in the number of litigants in person, and it is feared that this will slow down the administration of justice as judges, court officials and lawyers for the other parties in litigation spend extra time helping them to understand the procedure they need to follow and the case they need to meet.

Before they get to court, where do such litigants in person go for help in presenting their case without a lawyer to help them?

There are a number of organisations which provide free legal advice and assistance, such as drop-in law centres, Citizens Advice Bureaux and the Personal Support Unit at the Royal Courts of Justice in London. (A list of other sources of free advice.)

Moreover, most small and medium-sized law firms will provide a free initial consultation to help ascertain whether and what sort of legal problem a person may have. (For more information, go to the Law Society.) Whether they will then go on to provide advice without payment, in a case where legal aid or some sort of insurance is not available, usually depends on whether the case is appropriate for a “conditional fee” or “no-win, no-fee” arrangement.

Otherwise, the client will be on their own: and if they need to go to court, they will have to act for themselves as a litigant in person. In advising themselves as to the nature and substance of their problem, a litigant in person can also resort to a bookshop, where layman’s guides to various common types of the legal problem seem to be available, or to a library (though these are becoming as rare as hens’ teeth). There used to be a library in the Royal Courts of Justice, in the Queen’s Building, which was open to the public (where law reporters used to assist litigants in person to find relevant books and case law) but this has since been closed. The Inns of Court libraries are not generally open to the public, but the Law Society library in Chancery Lane can be accessed by non-members for a fee of £16 for one day, or £32 for a week.

But assuming they can’t find a resolution to their problem and have to go to court, what advice can a litigant in person get on how to do it?

Given the rapid increase in the number of expected litigants in person, it is surprising how few books there are to help them. On the Wildy’s (specialist legal bookshop) website there is one, the Litigant in Person Handbook by Ruth Lindley-Glover, which is not apparently scheduled to appear until October 2015. (That may be a mistake as the same book on Hammick’s website is scheduled for October 2014, but it’s still a long way off.) There’s also the more specialised Family Courts Without a Lawyer by Lucy Reed, published in 2011 (£29, or £20.66 on Kindle format e-book). Lucy writes the widely respected Pink Tape blog on family law and I suspect much of her advice would be valuable in other types of litigation.

Finally, resorting to Amazon, I found (among lots of self-help guides to US law and litigation) a single UK-based general guide: Representing Yourself in Court: Guide to Civil Law by Francis Manyika, £24.38 in paperback, or £20.60 on Kindle format e-book. The book is basically sensible, covering a variety of types of claim, but is hurriedly or carelessly edited. (“Defamation” seems an inventively Joycean spelling, for example.) There is a strong focus on procedure, including a full discussion of tracking and costs and a lot of forms. Despite the poor standard of publication, the advice is basically sound:

in your closing speech you will emphasize only the evidence which has helped your argument. If there has been unhelpful evidence given tr to put this in context and to show that the good evidence in your favour out weighs the negative evidence. [sic]

In the last week, however, both the judiciary and the bar have stepped into the breach with publications offering help and guidance to litigants in person.

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These are pamphlets rather than books and both are downloadable as PDFs. The judicial version comes from the Civil Justice Council and is limited to the type of litigation indicated by its title, A Guide to Bringing and Defending a Small Claim.

Nevertheless, it provides useful guidance on where to get advice, on deciding whether you really need to claim or defend a claim, web links to forms (such as a claim form), gives examples of a typical claim and how it might be progressed, what sort of evidence will be needed, how to prepare for the hearing, when to speak and how to address the judge, and how to appeal if you don’t like the decision. There’s actually quite a lot of information in its 30 pages, including a two-page “Jargon Buster” containing definitions of technical and legal terms.

The Bar has responded in admirable fashion to the fact that many of those who might otherwise have retained its services will have to soldier on without, in its guide A Guide to Representing Yourself in Court. In a press release, the Bar Council says: “Whether people use barristers’ services or not, we think we have a responsibility to explain and demystify the legal system to anyone who comes into contact with it.”

What one notices immediately about the Bar guide is the standard of production is more glossy than that of the Judiciary’s guide, and indeed it rather resembles a brochure designed to show you the glories of the Bar which, as a poor litigant in person, you won’t sadly be able to afford. On nearly every page there’s a picture of a barrister’s wig or gown or pink-ribboned brief. There’s an unfortunate air of “look what you’re missing out on”, which is a shame because the actual contents are good.

Of particular value are the sections on cross-examination and on being cross-examined (probably the most daunting and confusing element for a litigant who is also a witness in his own cause). “Do not use cross-examination to make speeches”, it advises, “don’t argue with the witness” and “speak loudly, slowly and clearly”.

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There are some other, more specialised guides, such as the Judiciary’s The Interim ApplicationsCourt of the Queen’s Bench Division of the High Court: A guide forself-represented litigants, which came out in January and hasn’t caught up with the latest practice guidance on terminology from Lord Dyson.

But it’s not just the Bar and Bench who have been proffering help to the hard-of-funding; solicitors firms such as Bates Wells and Braithwaite have produced their own, albeit brief, assistance, in their Guide to Litigation. In addition, the Law Society produced a year ago a Practice Note advising solicitors how to conduct themselves when dealing with litigants in person

What all this demonstrates is the perception from those on the shop-floor of the civil justice system that the cost-cutting measures imposed from above, by legislators who in most cases are not lawyers, and with an eye on the economic rather than the social cost, are going to create – for a while at least – a backlog of work and inevitable delays, and it will be to everyone’s benefit if we can help those who have to act for themselves to do so as effectively as possible in the circumstances.

Hat tip: @Familoo

Post Script

Lest anyone get the wrong end of the stick, the headline to this piece is not intended in any way to suggest that litigants in person are fools. Quite the opposite. The fools are, with respect, anyone who pays lip service to justice while convincing themselves it can be done on the cheap. But don’t quote me on this. It’s only a matter of opinion, not an official view.”

 


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Observations of an old Litigant in Person

diyLAW re-presents Observations of an old LiP by David Fabb in the light of the Tomlinson Report.

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My days as a Litigant in Person date from 2006 when I faced the stark choice of continuing to diminish my remaining and fast dwindling assets by making large, regular donations to the comfortable lifestyle of a large Manchester firm of Solicitors, OR, “going it alone”.

Having been divested of a substantial group of Companies in 2003 by a rapacious large firm of accountants, well practised in the black art of working hand in glove with Banks and funders to feed off the carcases of asset-rich businesses, I had, by 2005 “got going” again, using as a springboard one of my companies I had bought back from the Administrators of my Group.  The “hi-tech” metal bashing business had, by December 2005, expanded to a group of 4 Companies.
It was viable and expanding.  My home had been re-mortgaged to provide working and loan capital.

I was widely known to have been raising hell about the highly questionable actions of the “professionals” concerned, aided and abetted by dodgy lawyers and valuers. Silly me!  I thought if I laid all my evidence before the ICAEW, the self-regulator of Accountants and Insolvency Practitioners, who, mostly, are FCAs then the ICAEW would deliver a “guilty” verdict and deal appropriately with the miscreants.  Dream on!

On about the 20th December 2005 the ICAEW delivered their verdict that there was no evidence that the Administrators had behaved other than lawfully, professionally, -”No prima facie evidence of wrongdoing”.  No change there!

Out of a clear blue sky, on 23 December 2005, I received, along with uncle Tom Cobbly and All, Notice that the Administrators were suing me, my (new) Company and my Daughter.  The main claim was for approx £1.5 Million being the value of the machinery and other assets I had acquired from the Administrators in July 2003.  Now, one would think it only necessary to tell them to go forth and multiply, lay out the documentation to prove the claim was false and had no merit, and “Bob’s your Uncle”.

Not a bit of it!.  Plainly, “they” knew there was no basis for the claim, BUT, it had the desired effect of causing the Company’s Bank, to force the new group into administration in March 2006.  The Bank clearly determined that.. “They would not, as one of “The Big Four” accountancy firms in the world, make such claim unless there was substance in it”, so true to form, they made for the hills.

By May 2006 ALL the new Group’s assets were auctioned, -JOB DONE!  I had laid out thousands to rebut the claims and mount a defence. I had lost my income and the means to keep the family home.  It did not take long for the penny to drop that, in such cases, Lawyers make their assessment as to how long you may be able to fund their work.  In this case, I smelled, also, a reluctance to “take on” one of the big boys.  After all, they are all, inter-dependent for fees and referrals.  Their flagship offices, in this case, are a few doors apart.

Would that diyLAW had been around then!  Where to turn?  Whose advice to trust?

There is no point in deluding yourself, in such circumstances, that you have more than a slim chance to heap ordure on your tormentors.  THEY have YOUR money.  You are, more or less, traumatised.  Even very good businessmen with much entrepreneurial talent and a good brain, are not in a good place to turn, overnight, into advocates.

THEY know all the tricks.  How to stay (just) within The Law.  They have fine-tuned the model.  Much of Insolvency Law was drafted by them. THEY can afford the hottest, dodgiest Lawyer and Barrister to deflect scrutiny and censure.  THEY and their legal mates can, to a surprising extent, I found, manipulate the Judicial Process and the Court Administrations, to load the dice.  To do other than capitulate is not for the faint-hearted.

Will things change?  Can vital, long overdue reform come in our lifetimes?  I am an optimist.  LiPs must take heart!

Since my life changed forever in 2005 many cries of “Injustice, Corruption!” have, and are, finding expression via social media and a burgeoning self-help movement.  The social and economic pressures afflicting much of Society encourage a rising tide of voices saying “Enough is Enough!”.

As a somewhat burned out senior citizen, I marvel at the professionalism and dedication of people like Brad Meyer and Jeff Lampert who have achieved the near-impossible by conceiving and nurturing diyLAW to channel their sense of civic responsibility and anger at the obstacles to justice which must be overcome by citizens unfortunate as to become LiPs.

To overcome the obstacles, one has first to understand what, exactly, the obstacles are.
I am sure that, had I known at the outset, what I came to know by the end of my journey, the outcome might well have been different.  LiPs cannot expect the playing field to be level.  First, the obvious point that the emotional burden of appearing in Court, perhaps for the first time, and usually under the weight of the sense of having been wronged, automatically places the LiP, whether as Applicant or Respondent, at a disadvantage to the Lawyer/Barrister opposing you.  Information by diyLAW can dramatically redress the balance by informing citizens as to how to play Lawyers and Court Administrators at their own game.

Then, there is the projection of superiority, frequently an artifice adopted by the less able advocates or Judges.  My trick to counter that is to imagine the individual at their morning toilet.  The robe and wig, under the large Insignia of office, are, then,  no more than props.  I remind myself they are mere mortals: often with more than their share of inadequacies, flaws and failings.  Many, stripped of the protection afforded by their bond of common origin, are men of straw.

We need serious reform.  The reforms overdue include a change from the no longer fit for purpose adversarial system.  Most commercial litigation would be over in a fraction of the time and justice served at a fraction of present cost if we had an inquisitorial system.
We need changes to the Rules of Discovery. More sanction for failure to observe adherence to administration compliance and some high profile instances of corrupt Solicitors and their clients doing time.

diyLAW is increasingly being seen as a conduit whereby the senior Law Officers can receive feedback channelled to address the critical problem arising from an ever-increasing tide of citizens for whom employing solicitors or being granted Legal Aid are not options.

David Fabb


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.

Not complying with Court orders could be fatal to your claim

Things have changed over the last few months and sadly you not complying with a Court Order could be fatal to your claim.

What does complying with a Court Order mean.  Simply if the Court has provided you with directions of how to conduct your case i.e. :-

  • “Both Parties to exchange List of Documents by the 5th May 2014 (or whatever date set down by the Court)
  • Both Parties to exchange witness statements by the 6th June 2014 (or whatever date set down by the Court)   etc.”

AND YOU DO NOT DO WHAT THE COURT HAS ASKED YOU TO DO, BY THE TIME THE COURT HAS ORDERED YOU TO DO IT, YOU MAY LOSE YOUR OPPORTUNITY TO DO IT ALL.

Think about it, its quite simple really, if you don’t bother to submit your Statement by the date ordered by the Court, and you then apply to the Court to ask for permission to submit your Statement late, and, the Court refuses, that is your case over and done with no matter how good your claim.

So what happened well CPR 3.9 happened on the 1st April 2013 and the Courts were directed to consider “all the circumstances of the case, so as to enable the Courts to deal justly with an application for relief of sanction” (a relief of sanction is you making an application to the Court if you have missed complying with a direction, rule or order of the Court) however the Judges would now only consider two questions when deciding whether they should grant your application for relief of sanction) (give you extra time to comply with their original Order).  The questions the Judges HAVE TO  consider are:-

  1. Can litigation be conducted efficiently and at a proportionate cost;
  2. The necessity of  enforcing compliance with rules, practice directions and orders.

Judge Lewison giving his Judgment in the Court of Appeal in the case of Perry v. Brands Plaza Trading 2012 EWCA Cov 224 said the following:-

“Courts at all levels have become too tolerant of delays and non-compliance with orders.  In so doing they have lost sight of the damage which the culture of delay and non compliance is inflicting on the civil justice system.   The balance therefore needs to be redressed”

Judge Lewison’s comments have proved influential and in the subsequent cases of Venulum Property Investments Ltd and Space Architecture and others 2013  Mr Justice Edwards-Stuart cited Judge Lewinson by stating that he regarded the new addition to sub-paragraph (f) to the overriding objective “as requiring the court to take a more robust approach when exercising a discretion to extend time for service of a claim form or particulars of claim

Venulum v, Space Artchitecture was a professional negligence claim in which the claim form had been served in time but the particulars of claim had not.  An application was made to extend the time of service of the PoC.

Mr Justice Edwards-Stuart found 3 factors where of particular importance in considering whether the application for relief of sanction should succeed:-

  1. There had been an unexplained delay of 5 years before the Claimant had instructed solicitors.
  2. On the information and documentation before the Court the Claimant’s claim was not a strong one.
  3. The claim was a vaguely pleaded claim for bad faith

The Judge stated the following:-

“In my judgement when the circumstances are considered as a whole particularly in the light of the stricter approach that must now be taken by the Courts towards those who fail to comply with the rules following the new changes to the CPR, this is a case where the Court should refuse permission to extend time”

Shortly after this case the Judges considered the matter of non compliance again in the case of Fons HF v. Corporal Ltd 2013.   This matter involved a late application to extend time for service of witness statements only three weeks after the deadline! Although the application was successful the Judge presiding gave this stern warning that he had:-

“come very close to refusing an extension to either of the parties” and referred to the fact that the “amended Civil Procedure Rules now require the Court to pay close attention on the failure of parties….a failure to comply with a rule direction or order is itself a clear breach of the overriding objective and is likely to result in severe sanctions”.

So you can see the Courts are taking a much stricter approach, however if you are unfortunate enough to miss a direction etc set down by the Court you may still be able to obtain relief from sanction if you :-
Make an application as soon as possible after you realise your error and attach a copy of the document you were supposed to serve etc and a clear and detailed Statement in support of you application explaining why there has been a delay. The Court will consider that there are unforeseen factors which can lead to delays, but do substantiate your explanation with any physical evidence you may have i.e. copy of sick note from your GP.

To avoid the stress of making such an application COMPLY WITH THE COURT’S DIRECTIONS and if you can’t apply to the Court PRIOR TO THE EXPIRY OF THE COURT’S ORIGINAL ORDER and seek the consent of your opponent.

GOOD LUCK,

by Deborah Aloba

of Affordable Law For You


This blogpost is for information purposes and should not be relied upon as legal advice because it does not consider or take into account your own personal circumstances. If in doubt, seek legal advice.