– 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.
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.
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.
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.