diylaw

diyLAW working with Brent Law Centre

During the past 5 years the Law Centre has worked closely with diyLAW. During this time they have placed several pro bono volunteers with us.  Volunteers are required to carry out 50 hours pro bono work assisting our solicitors with clients and casework in areas of Social Welfare Law. 

The majority of the pro bono volunteers assist our Asylum/Immigration Senior Solicitor with her work. Tasks include carrying out country research for Asylum claims, drafting detailed chronological background information on clients, research on country experts for preparation of reports, preparing court bundles and indexes and general admin tasks such as the photocopying and scanning of client documents. 

We have always found the attitude and work ethic of the diyLAW pro bono volunteers to be professional, of high standard and all are very capable of carrying out the various tasks assigned to them. Their assistance helps free up valuable time for our solicitors to spend more time on urgent casework.

Without the pro bono volunteers the Law Centre would struggle to meet the demands for our service, especially at a time when cut backs to Legal Aid and funding in the charity advice sector have lead to a reduction in staffing.

We are thankful for the help and assistance provided by diyLAW. We hope to continue with the pro bono placements from them in the future, thus enabling us to continue to reach out and assist some of the most vulnerable individuals in the community of Brent.

Alison Plaku

Office & Volunteer Manager

Brent Community Law Centre

389 High Road, Willesden, London NW10 2JR

direct Tel: (0208) 20 82 08 57 00 reception Tel: (00 44) (020) 8451 1126

Follow us at: @BrentlawCentre Brent Community Law Centre BCLC

 

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.

What is Probate?

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diyLAW are grateful to Megan Scourfield, an LLB student at Arden University, for her guide on Probate. This presentation is for general information purposes only 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.

 

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 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.

A Guide to Family Mediation

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diyLAW are grateful to William Rigg, an LLB student at Arden University, for his guide on Family Mediation. This is for general 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.



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.