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.

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”.

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.”

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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.

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

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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

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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.

Negotiate, Litigate or Mediate?

By Russell Evans, Manager of Resolve UK[i]

If you have come to this website it is likely that you are involved in a dispute and seeking assistance. It is likely that you have not been able to negotiate a successful resolution of your dispute, have not been able to convince your opponent of your position or legal rights and are unable to satisfy your opponent of the remedies or redress to which you believe you may be entitled.

You may feel that your words have fallen on stony ground and that your attempts to negotiate have been frustrated. Maybe of course you have simply not been heard. There may also be a gulf between you not only in understanding but perspective.

You are probably feeling frustrated. What can you do? You collect your thoughts. You can of course try again and hope for a more positive response. You may however feel that you have reached an impasse. There is of course the option of litigation. Sometimes you may have no choice.[ii]

Litigation of course may bring its own ordeals and demands, including the need to prepare court papers, the need to attend at court before a judge and the need to facilitate argument and advocacy in your cause. Added to this process is the work of preparing and collating evidence, obtaining and finalising witness statements and invariably a good deal of stress and delay. Litigation is usually both lengthy and costly. The outcome is also out of your hands. Control ultimately rests in the hands of the judge and the judge’s decision will be handed down and imposed on the parties. Litigation in consequence has often been likened to a war focusing on a fight between the parties.

Mediation by contrast is a very different process. Mediation is both party and solution focused. In a mediation the parties to the dispute appoint an independent professionally qualified mediator to assist them. The mediator assists the parties to review their dispute, to consider options, to facilitate discussions and to explore and ultimately find solutions. The mediation typically takes place over the course of 1 day. It may last a few hours or may be longer where there is a more complex and involved dispute. A solution which is agreed by the parties is usually found. Indeed mediation has an 80 % success rate.

Mediation is far quicker and far cheaper than litigation. Mediation is also a private and confidential process. Parties to the mediation can have separate confidential discussions and meetings with the Mediator. Indeed the mediation process is flexible and can adapt to suit both case and party needs. It is not hemmed in by the formality of a court room.

Mediation can be used both before and after the commencement of court proceedings.

The Courts, the Judiciary and Government all support and recommend the use of mediation as a highly effective mechanism for resolving disputes.

Here is what Lord Justice Ward had to say in the Court of Appeal case of Oliver v Symons (2012) EWCA Civ 267:

Parties should ‘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’

Courts also now routinely consider the reasonableness of conduct of the parties to a dispute and proportionality when making cost orders. Indeed the courts can impose adverse cost orders on a party who fails to mediate. Here is what Lord Justice Rix had to say in the Court of Appeal case of Rolf v De Guerin (2011) EWCA Civ 78:

‘Parties should respond reasonably to offers to mediate or settle and…their conduct in this respect can be taken into account in awarding costs.’

Judges are in fact required to consider the use of mediation under the Civil Procedure Rules.

Under the Ministry of Justice Scheme to which Resolve UK belongs the cost of mediation can start at just £50 or £100 per party for lower value claims. Under the scheme there is a sliding scale depending on the size of the claim. For claims below £50,000 the mediator’s fee is fixed at a maximum of £425 per party for a half day appointment.[iii] Some low value claims can even be dealt with over the telephone. In most cases a mediation venue will be required. Mediation rooms can be provided by Help4Lips.

Mediation has a wide variety of uses. By way of example it can be used to resolve:

• Property disputes including claims as to ownership as well as boundary and construction disputes

• Disputes about wills and probate and claims for inheritance

• Insurance claims – fire, flood and theft as well as personal injury

• Business and trade disputes including disputes between business owners, partners, directors and shareholders

• Employment claims including grievances and claims for discrimination and unfair dismissal

• Family disputes including financial division and child access

There are of course many other types of disputes where mediation can assist. It is impossible to list all here. If you would like to resolve your dispute Mediation could be right for you.

[i] Russell Evans is a practicing Mediator, Arbitrator and Legal Consultant. He is practice manager at Resolve UK a nationally accredited mediation panel approved by the Ministry of Justice. He is a former solicitor and former Head of Litigation & Dispute Resolution.  For further details or to explore the use of mediation see www.resolveukmediation.co.uk or contact Russell at resolve@resolveuk.co.uk

[ii] There are defined time limits for bringing court actions and tribunal claims.

[iii]  Scale as at July 2013

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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.

Litigants in Person: Guidelines for Lawyers

The Bar Council, CILEx and the Law Society have prepared  guidelines to  assist lawyers when dealing with litigants in person. diyLAW is convinced that reading these guidelines will also be extremely useful for LiPs to get a better understanding of the way the Law works.

Many litigants in person feel the system is against them. This document is a substantial effort to ensure the process works for all parties, most particualy for LiPs. If you are a litigant in person we encourage you to read these guidelines and try and follow the process laid out in your case

Please click on this link to access the document: http://www.lawsociety.org.uk/support-services/advice/articles/litigants-in-person-new-guidelines-for-lawyers-june-2015/

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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.

Litigants right to fear high legal costs, says government research

by Dan Bindman

of Legal Futures

The fears of litigants about the high cost of legal representation were borne out by their experience, government-commissioned research has found.

The qualitative research, carried out by Ipsos Mori for the Ministry of Justice, accompanied the government’s response to its court fees consultation and aimed to discover whether they would have been deterred from starting proceedings if fees were set at higher levels.

It questioned 54 civil claimants and family applicants, including individuals and small businesses, and covered those who were privately paying, funded by conditional fee agreements (CFAs) and legal aid, and litigants-in-person. As the government no doubt hoped, the survey concluded that most claimants did not consider court fees a barrier to taking a case to court.

However, a section on self-funded represented parties supported the argument that fixed fees in litigation could help to mitigate consumers’ fears about spiralling cost. The researchers said litigants often began with the perception that representation was expensive, a view that was reinforced when initial quotes were supplied.

They also found, in both civil and family cases, that self-funded claimants and applicants “tended to find that the final costs were higher than expected”, confirming their initial misgivings about price. The survey explained this was because “they had typically believed that the case would be completed sooner and would involve fewer court appearances, and less involvement from a solicitor”.

The researchers conceded that this might not be the view of the majority of civil litigants given that many settle before a hearing.

Fear of up-front costs drove many litigants to seek representation under a CFA and they reported that they would not have been able to afford representation if they had not found a solicitor willing to act for them on that basis.

Unsurprisingly, the researchers concluded that their findings suggested that “legal costs could be a potential deterrent to bringing cases to court for those who do not have sufficient earnings or savings to pay such costs independently”.

Among litigants-in-person, many claimants seeking relatively small amounts of money were content to proceed without representation, but some who wanted representation and could not afford to pay for it, decided to self-represent rather than drop their case.

In the above context, “low awareness” of court fees was common and they were not considered crucial in decision making. The fees “were perceived to be a relatively small element of the total costs of going to court”.

Please refer to the original article here.

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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.

LiPs help LiPs with #DIYLAW

On 8th of December 2017 diyLAW attended the Civil Justice Council's  National Forum on "Access to Justice for Litigants in Person."

Here is a summary of our previous leaflets we presented at the Forum:

• leaflet 2013

• leaflet 2014

• leaflet 2015

• card 2016

• leaflet 2017

• leaflet 2018

The forum brought together 130 judges, lawyers, advice workers, academics, regulators, civil servants and others to discuss progress made on improving access to justice for litigants in person (LiPs). Please find the forum`s summary here published by the Civil Justice Council

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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.

Landlord and Tenant – What does the bedroom tax mean to you?

Since 1 April 2013, new housing benefit rules mean you won’t be able to get housing benefit to pay for all of your rent if your home has ‘spare bedrooms’. This media has called this the ‘bedroom tax’.

If you’re a council or housing association tenant and are receiving housing benefit and renting a home that has more bedrooms than you need, it’s likely that your housing benefit will be reduced. The new limit on the number of rooms you can claim housing benefit for is based on the number of people living in your home.

If you have more bedrooms than the new rules say you require, you will be treated as ‘under-occupying’ your home and will get less of your rent paid for by housing benefit.

If housing benefit no longer covers the full cost of your rent, you will have to pay the rest of the rent yourself. This must be paid directly to your landlord. If you don’t pay the balance of your housing benefit and you get behind with your rent you could end up with a Notice for Possession being served on you.

So how much will your housing benefit be reduced by well:

• 14% will be taken off if you have one extra bedroom.
• 25% will be taken off if you have two extra bedrooms.

So, if you have one ‘spare bedroom’ and your rent is £100 per week, only £86 will count when your housing benefit is assessed. You will have to pay at least £14 to your landlord yourself.

If you have two or more ‘spare bedrooms’, and your rent is £100 per week, only £75 will count when your housing benefit is assessed. You will have to pay at least £25 to your landlord yourself.

So what can you claim housing benefits for now?  Under the new rules you can only claim housing benefit for:

• one bedroom for a couple
• one bedroom for a person aged 16 or over
• one bedroom for two children aged under 16 of the same sex
• one bedroom for two children aged under 10 (boys and girls are expected to share a room)
• one bedroom for any other child
• one extra bedroom if you or your partner needs an overnight carer to stay.

Severely disabled children who need their own room will not be required to share a room. However the decision will be made by the Council who should take into account the severity of a child’s disability, so you will need to provide medical evidence or proof of an award of disability living allowance if one has been made) and how regularly another child’s sleep would be disturbed if they shared a room, so you may need to provide DVD evidence of your severely disabled child’s sleeping patterns

If you became an approved foster carer in the last 12 months you can count a room for a foster child.

If your child or partner or lodger is a member of the armed forces who is serving away, providing they intend to return to your home, you can count their room and if your child or partner etc is a student and they are away from home studying, you can count their room providing they are only away temporarily (less than 52 weeks) and intend to return home.

You won’t be allowed to claim housing benefit for ‘extra’ rooms that are used for:

• children visiting a divorced or separated parent
• couples who use separate bedrooms because of illness or disability
• rooms used by disabled adults to store medical equipment.

If you or a member of your family are a disabled adult living in adapted or specially designed properties you may face cuts to your housing benefit, but it might not be practical or affordable for you to move.  It might be possible to claim a discretionary housing benefit, give us a ring or e-mail us and we can help you with making that claim.

Deborah Aloba

Affordable Law For You Limited

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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.

"Information to support your case" - obtaining it or having to disclose it

It is thought that ”information is power” and making information available to the court and the parties to a claim has long been an integral part of the litigation process. Historically, the court of equity was the initial conduit for the process of the disclosure of information, ”discovery” as it was. It used to be that, at common law, a party could not be a witness in his own case – neither the claimant nor the defendant could be their own witness (!). As a result, the earliest bills in Chancery sought discovery of facts relevant to the claimant’s (then called the plaintiff) case to assist in achieving fair and equal judgment. With the passage of time, although the aims of discovery were recognised as valuable for litigation, its development led to onerous obligations on both parties, in terms of time, risk and cost. Often, it became a weapon which was capable of producing, in equity, as much of an injustice as it initially sought to guard against.

   
Fast forward to the 21st Century and the reforms brought about by ”Access to Justice” and the Jackson recommendations. Discovery, now renamed ”disclosure”, is still considered a vital element of litigation. It is recognised that there are substantial overall benefits to the exchange of information at an early stage of the proceedings - ensuring equality of access to evidence and possibly facilitating early settlement when parties have clarification of the strengths and weaknesses of their case. Discovery was, however, also ripe for reform given the perceived problems with the often disproportionate costs involved (and the possible, resulting undermining of access to justice), the practicalities of putting together often formidable court bundles (which were then largely unlooked at during a trial) and the ever-increasing need to deal with information contained in an electronic format.

So, what is disclosure? According to the Civil Procedure Rules (the ”CPR”) , disclosure is merely a formal statement that a ”document exists or has existed”. And what is a document? The definition here includes ”anything in which information of any description is recorded” - written documents, audio tapes, videotapes, photographs, as well as electronic documents (emails, WP documents, and databases) are covered. Also covered is material not readily accessible (for example, electronic documents stored on servers and back-up systems) as well as electronic documents which have been deleted. However, it is important to appreciate that it is the information contained within the document and its relevance to the issue(s) in dispute that determines whether or not a document is disclosable. 

It is possible, in certain circumstances, for this disclosure to occur before proceedings have even been commenced. There are specific pre-action protocols across a range of dispute types as well as a general Practice Direction covering pre-action conduct. In these, potential litigants are actively encouraged to disclose relevant documents informally at an early stage (albeit only those documents which support their claim). The objective is to provide parties with ”sufficient information …to allow them to understand each other’s position” . The aim is to aid the potential parties to make ”informed decisions about how to proceed and possible approaches to settlement, possibly avoiding litigation completely”. These pre-action protocols carry much weight with the court. Knowledge of the requirements suggested by them and subsequent compliance with those suggestions is an important consideration for any potential litigant. The court has a discretion to order sanctions against a party in the face of non-compliance – in relation to disclosure, refusing to release documents has led to cost consequences for the non-compliant litigant.

Additionally, the court has various statutory powers (depending on the court/tribunal or the nature of the claim) to order disclosure from a potential party to subsequent proceedings. Under CPR31.16, there are a number of criteria that need to be satisfied for the court to consider an order for what is called pre-action disclosure - the application is between the likely parties to subsequent court (rather than arbitration) proceedings, the documents are going to be disclosable in those proceedings in any event, pre-action disclosure would be beneficial in terms of fairness, assisting in resolution of the dispute without proceedings and the lessening overall costs. Even if these criteria are met, the court has further discretion as to whether to grant such an order. 

In exercising this discretion, the court will consider things such as the nature of the claim, its potential merits and the clarity of the issues involved, the costs (both in granting the order and the impact of not granting the order), the documents sought (their volume and nature), whether the information is available from other sources, and the previous conduct of the parties (this is where compliance or non-compliance with pre-action protocols in relation to disclosure may also impact positively/negatively on a litigant’s application).

  Any documents disclosed at this pre-action stage (whether informally under a pre-action protocol or by court order) can generally only be used for the purposes of the anticipated proceedings.

Once proceedings have been commenced, the court has a further power to order disclosure against a person who is not a party to those proceedings themselves. However, there are limitations as to when such orders may be made. The information sought must only be available from the third party. Additionally, the documents to be disclosed must be likely to support the applicant’s case or adversely to affect the case of another party to the proceedings and disclosure must be necessary to dispose of the claim fairly or to save costs.

Again, even if these criteria are satisfied, it is still the court’s discretion as to whether the order will be made. For instance, no order for disclosure against a 3rd party will be given if compliance would be injurious to public interest. Nor will it be given if the definition of the document or the class of documents is not sufficiently clear and specific in the application itself. The court will also consider the interests of the non-party to protect his privacy and the confidentiality of the documents against the interests of the party seeking disclosure. This is a remedy of last resort; such an order is not going to be given routinely as the court will need to balance the rights of the 3rd party against the need of the applicant in relation to the case (the ability for it to be dealt with fairly or to save costs).

There are other well-established situations (either pre or post the issue of proceedings) where an equitable remedy involving disclosure may be ordered against 3rd parties by the court in very specific circumstances, seeking to achieve very specific results. For instance, these include:-

(a) Norwich Pharamcal orders – where an application can be made for disclosure of documents and/or information from a 3rd party who, while a non-party to the litigation, is somehow involved or mixed up in the wrongdoing (innocently or otherwise), and
(b) search orders (formerly Anton Pillar orders) - a form of mandatory injunction from a master or district judge in the High Court. Such an order allows for entry to the defendant’s premises to search for, copy and remove documents and/or material in relation to the dispute. The aim is to prevent evidence being lost or destroyed. However, given the nature of the application and its potential impact, the application must be based on a very clear case with clear evidence of the document in the defendant’s hands as well its possible destruction.

In deciding whether pre-action disclosure or disclosure from a third party would be appropriate, the court is looking to balance finding a resolution to a dispute without recourse to actual proceedings as against assisting with an applicant’s nebulous claim. The court’s various powers in relation to requiring the disclosure of information (whether pre-proceedings between the parties or from a 3rd party) are important considerations for a potential litigant. Knowing and understanding the jurisdictional criteria that need to be established for any such order are important tools in the litigant’s arsenal.

Alison Bicknell

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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.

How a Judge sees the Litigant in Person issue

Litigants in Person

If you are not a litigant in person:

Many litigants in person become involved in litigation because they have no alternative and many others become involved in litigation because they think that they have no alternative.

While you are perfectly entitled to be as firm as the circumstances require you should be unfailingly courteous.

Try to find what the real issues are and address them. It is your duty to all litigants in person to do what you can to assist them with the mechanics of the process of litigation such as (to the extent that you are permitted) helping with the orderly compilation of hearing bundles.

Expect to feel that it is frustratingly as if the court is bending over backwards in favour of your opponent.

If you are a litigant in person:

Try to identify the real issues.

Address the issues in ordinary English – there is no such language as “Courtspeak”.

Don’t download statements of case from the internet without understanding what they say and being able to support what is said at a hearing – the judge will be looking at you not the website.

Remember that asserting something is not the same thing as proving it.

Always obey court orders and, if you may be late, immediately apply for an extension of time or an adjournment with your reasons and (where needed) the evidence for doing so.

Take a good note.

Above is an extract from Case Handling - An Illustrated View from the Bench by HH Nicholas Chambers QC published by Wildy, Simmonds & Hill Publishing.

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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.