Litigants in person - 19 April 2012 - Parents Against Injustice

Litigants in person - 19 April 2012

1 Introduction

1.1 Who should read this practice note?

All solicitors who may need to deal with litigants in person (LiPs) as part of their work.

1.2 What does this practice note cover?

This practice note offers guidance on the issues that you should take into account in your dealings with LiPs, including managing any conflict between your duties to the court and duties to your client, and other areas of sensitivity.

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1.3 Outcomes-focussed regulation

The Solicitors Regulation Authority implemented outcomes focused regulation in October 2011. OFR is a move away from a rules-based approach to one that focuses on high-level outcomes governing practice and the quality of outcomes for clients.

An overview of OFR can be found on the Law Society's website. This provides information on what the SRA Handbook contains, including a summary of the chapters in the Code of Conduct and a summary of the reporting requirements included throughout the Handbook.

The SRA has published a Handbook, which sets out all the SRA's regulatory requirements. It outlines the ethical standards that the SRA expects of law firms and practitioners and the outcomes that the SRA expects them to achieve for their clients.

The SRA Handbook includes a Code of Conduct, which replaces the Solicitors' Code of Conduct 2007. The new Code establishes outcomes focused conduct requirements and each chapter outlines outcomes and indicative behaviours. Chapter 11 of the SRA Code of Conduct 2011, Relations with third parties is relevant here.

The new SRA Handbook and Code came into force on 6 October 2011. The Solicitors' Code of Conduct 2007, and all of its rules and guidance, do not apply to conduct undertaken after that date and cease to have any effect, save in respect of any review by the SRA of conduct taken prior to 6 October 2011 to which the 2007 Code will still be applied.

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1.4 SRA Principles

There are ten mandatory principles which apply to all aspects of practice. They can be found in the SRA Handbook. You should always bear in mind the ten principles and use them as your starting point.

Those which are particularly relevant in this context are as follow:

Uphold the rule of law and the proper administration of justice;
Act with integrity;
Do not allow your independence to be compromised;
Act in the best interests of your client; and
Behave in a way that maintains the trust the public places in you and in the provision of legal services.

As detailed below, when dealing with LiPs you should be particularly mindful of your duty to act in the best interests of your client (Principle 4), and your duty to ensure that your independence is not compromised (Principle 3).

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1.5 Status of this practice note

Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.

Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.

For queries or comments on this practice note, contact the Law Society's Practice Advice Service: www.lawsociety.org.uk/practiceadvice.

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1.6 Terminology

Must
A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.

Should

Outside of a regulatory context, good practice for most situations in the Law Society's view.
In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).

These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.

May
A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.

SRA Code - SRA Code of Conduct 2011

2007 Code - Solicitors' Code of Conduct 2007

OFR - Outcomes focused regulation

SRA - Solicitors Regulation Authority

IB - Indicative behaviour

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2 What is a litigant in person?

There is no typical profile of a litigant in person. The term commonly encompasses individuals who wish to represent themselves in legal proceedings, which may progress to court or tribunal. However, unrepresented parties may be encountered at any stage of the process, including prior to the start and after the issue of proceedings, as well as during proceedings. Any relevant professional obligations in this context will apply whether or not proceedings have been issued.

Some LiPs will take legal advice up to the point of going to a court or tribunal, where they will represent themselves; others may have chosen to litigate or defend claims brought against them without having obtained any legal advice. Establishing why a LiP is unrepresented or has chosen not to be represented may help you to understand their position and thereby inform the process. For example, if a LiP has no legal knowledge or a negative perception about legal professionals generally, this will impact upon the way in which you engage with them.

You should not make assumptions about the merit of a LiP's case on the basis that they have not obtained representation. Some LiPs are court-literate and able to navigate the process because they have a legal background or other expertise which equips them for managing the case.

Such LiPs should be distinguished from those who feel that they have no other option but to represent themselves because they cannot afford to instruct a solicitor and have not been able to obtain free legal advice. Those in this situation may not have any comprehension of the legal process, nor are they able to form an objective assessment of their own case. The SRA Code discussed at section 3 of this Note, and your duties to the court at section 4, may be helpful in framing your approach to such LiPs.

2.1 Where might you encounter litigants in person?

With the decline in public funding and in the midst of a difficult economic climate, LiPs are likely to become more frequently encountered in some areas of practice, and particularly so in family and civil cases. However, this is not a new development; it is already common for unrepresented parties to appear at employment tribunals and other hearings.

There has also been a proliferation in the numbers of litigants represented by non-legally qualified persons in small claims hearings, as per The Lay Representatives (Rights of Audience) Order 1999.

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3 Your approach and the SRA Code

Amendments to the Handbook since the introduction of OFR in October 2011 do not impact upon your duties to clients and LiPs. Your duties to act in the best interests of your client, and to the court (see section 4), remain paramount. However, the SRA Code refers to other specific considerations relevant to your dealings with LiPs.

IB 11.7 states that you should not take 'unfair advantage' of an opposing party's lack of legal knowledge where they have not instructed a solicitor. Further, IB 11.9 states that you should not use your professional status or qualification to take 'unfair advantage' of another individual in order to advance your client's interests.

3.1 Taking 'unfair advantage'

Taking 'unfair advantage' refers to behaviour that any reasonable solicitor would regard as wrong and improper. That might include:

bullying and unjustifiable threats;
misleading or deceitful behaviour;
claiming what cannot be properly claimed;
demanding what cannot properly be demanded.

Such conduct is likely to be penalised if identified by a judge or upon complaint.

Conversely, knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be as against a qualified representative or an unrepresented LiP, would not in itself be deemed to be either taking 'unfair advantage' or a breach of the SRA Code.

You should be mindful in this context that correspondence and telephone calls from some LiPs may be emotive, repetitive, and potentially hostile. Responses should be relevant, measured and calm; 'tit-for-tat' tactics should be avoided, and you should behave in a manner of which the court would approve. This includes treating LiPs with courtesy and in a way that any ordinary person would regard as fair and reasonable.

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4 Duty to the court

Your duties to the court - and to your client - should be your primary considerations throughout.

4.1 Keeping your client informed

The involvement of a LiP will often slow down the litigation process, as judges may have to take time to explain proceedings, and will wish to ensure that all parties are 'court ready'. The judge may expect you to assist in this regard, or to defer to any latitude the court may offer. You will need to explain this to your client and obtain instructions. However, you should be mindful throughout that under Chapter 3 of the SRA Code (Conflicts of interests), you must cease to act where there is a conflict between you and your client, and this must be balanced with your duty to the court as discussed below.

Where it appears that your client might be prejudiced, you should not be constrained from challenging any unusual concessions that the court might otherwise be minded to grant. In extreme cases you may refuse to assist a LiP, or even withdraw from acting at all should you feel that the court's request would conflict with your client's interests while placing you in contempt of court if you fail to comply.

Chapter 5 of the SRA Code (Your client and the court) is relevant here:

Outcome 5.3 holds that you must comply with court orders which place obligations on you, and
Outcome 5.5 states that you must inform your client of circumstances in which your duties to the court outweigh your obligations to your client.

Ultimately, you will need to balance all interests and duties to determine how best to proceed on a case by case basis.

If a LiP understands what is required of them, it will make the litigation process less burdensome for all parties. Accordingly, whilst it may be legitimate for you to refuse to do so there could be circumstances in which the interests of your client and the court will be furthered by providing some level of assistance, for example in avoiding unnecessary costs being expended in dealing with a misguided initiative. The court may also request assistance from a represented party where a LiP is clearly experiencing practical difficulties.

However, it is important that any dealings with a LiP intended to give constructive guidance are carefully considered and properly explained to your own client so as not to give rise to the impression that you are advising the opposing party. You should also consider whether you will carry the cost of any additional work or time involved in assisting the LiP, or seek to recover any additional costs you incur from your own client. If such a scenario is likely to arise, you should discuss it with your client in advance. You may also provide guidance as to what would and what would not amount to recoverable costs during proceedings.

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4.2 Assistance for LiPs in appropriate circumstances

Any steps taken to assist an opposing LiP should be done in a manner consistent with your duty to your client and to the court. Any such assistance should be non-advisory and limited to purely procedural issues. Depending on the circumstances, it might be appropriate to consider the following:

Where it is necessary that the attention of an opposing party be drawn to a particular procedural rule a web-link could be provided for the LiP;
Where legal argument is advanced it may save court time and be a matter of courtesy to provide a link or copy of any authority where an opposing solicitor would normally only require a citation. However, you are not obliged to provide information that your opponent would already be expected to have in their possession;
It is sensible to avoid the use of technical language or legal jargon in your communications with a LiP; and
You should allow sufficient time and information to enable the costs in any matter to be agreed, as determined by IB 11.1 of the SRA Code.

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4.3 Expectations of the court during proceedings

Where a LiP is a defendant to proceedings and no other Pre-Action Protocol applies, The Civil Procedure Rules (CPR) state that you should refer the LiP to the Pre-Action Conduct Practice Direction and draw their attention to paragraph 4 which concerns the court's power to impose sanctions for failure to comply with the Practice Direction. You can inform the LiP that ignoring the letter before claim may lead to the claimant starting proceedings, and may give rise to a liability for costs.

Where a specialist Protocol applies, and more detailed pre-action procedures are required, a LiP will ultimately be subject to the same obligations as a represented party. If you consider it to be in the interests of your client, and to prevent delays in proceedings, you may send a copy of the relevant Protocol to a LiP when first contacting them about a claim.

In preparing for hearings, the court may expect you to carry out the following:

Prepare all necessary bundles of documents and provide them to the court (unless the LiP confirms that they will undertake the work);
Provide copies of bundles to the LiP at the same time as providing them to the court;
Provide written arguments and documents to the court and the LiP in good time before any hearing, unless a delay is unavoidable; and
Where necessary, promptly draw and seal the order made by the court (unless the LiP confirms that they will undertake the work).

4.3.1 Employment tribunals

While giving primary regard to the interests of your client, the following considerations should be taken into account during employment tribunals:

LiPs may not be aware of The Employment Tribunals Rules of Procedure and may not therefore appreciate the need to ensure compliance with tribunal orders and the consequences of failing to do so. If the LiP has previously missed deadlines, you may remind them before the date for compliance with a tribunal order. This may be in the interests of your client where the tribunal would otherwise be minded to grant an extension of time;
It may be appropriate to remind unrepresented LiPs before the date for compliance with a court order if it serves the interests of your client and duty to the court;
Negotiating settlement terms with a LiP may be difficult if the individual has not had the benefit of receiving professional advice as to what is realistic. In these circumstances, it may be beneficial to involve the Advisory, Conciliation and Arbitration Service (ACAS) to assist with the settlement process.

4.3.2 Family law

While giving primary regard to the interests of your client, the following considerations should be taken into account in the context of family proceedings:

It might be appropriate to remind unrepresented LiPs before the date for compliance with a court order if it serves the interests of your client and duty to the court;
Any documents relating to children and prepared for the purposes of family proceedings are strictly confidential and may be disclosed to a restricted class of persons only (see rule 12.75 of the Family Procedure Rules 2010), as well as to a McKenzie Friend (see section 6). Under 12.73 of the 2010 Rules, failure to comply will amount to contempt of court. It may be necessary to ensure that the LiP is fully aware of this for your client's protection and that of the children;
Family cases can involve LiPs who are particularly angry and upset, or even vexatious (see section 5). It may be prudent to ensure that you keep accurate records of any meetings and to follow up any conversations in writing summarising what has been discussed; and
Cross-examination by a LiP of an ex-partner can be emotionally charged. You may wish to explain to the LiP that cross-examination should not be aggressive, and that the judge would be asked to intervene if it were deemed to cross these boundaries.

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5 Persistent unmeritorious claims/vexatious litigants

You should be vigilant about litigants who habitually and persistently issue claims without reasonable grounds, where such practice amounts to an abuse of the court process. They should be distinguished from LiPs who are displaying symptoms of stress or anxiety, or those who are suspicious of lawyers and the legal system.

Dealings with such litigants can be time consuming and expensive. You may take the following steps to manage people who you suspect fall into this category:

if a Claim Form is issued and the name appears familiar, check that the individual has not made a claim about the same issue previously if the cost of doing so is proportionate, subject to your client's instructions;
consult the court's list of individuals that have been declared vexatious by the Attorney General, and those subject to Civil Restraint Orders (CRO) (see section 5.1);
if there are no reasonable grounds for bringing a claim, or if there has been a failure to comply with a rule, practice direction or court order, apply to strike out the claim; and
if you believe that the LiP in question is vexatious or a habitual litigant without reasonable grounds for issuing repeated claims, apply to the court for a CRO which prevents a LiP from bringing a claim or making an application in certain circumstances and for specified lengths of time (see also section 5.1).

5.1 Application to the Attorney General

If you have explored all of the options detailed above, including an application for a CRO, and you have evidence that an individual is making persistent unmeritorious claims, you may make an application for the Attorney General to declare a LiP vexatious.

Under section 42 of the Senior Courts Act 1981, the Attorney General can apply to the High Court to prevent a litigant instituting any proceedings without the leave of the High Court, either for a specified period or indefinitely. Such an application should only be made in exceptional circumstances.

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6. Assistance available to LiPs

For information, this section outlines the resources available to LiPs. You are not obliged to provide any such information to a LiP, although you may wish to do so if you feel it is in your client's interests.

There are a number of national initiatives which aim to improve the level of support available to LiPs. The use of mediation is favoured, and the Government aims to increase awareness so that individuals are better placed to understand the options available to them.

6.1 McKenzie Friends

During court proceedings, LiPs have the right to seek reasonable assistance from a layperson, sometimes called a McKenzie Friend. A McKenzie Friend may sit alongside a LiP and provide general support. You should note the following in relation to McKenzie Friends:

A McKenzie Friend is permitted to further the interests of justice by achieving a level playing field and ensuring a fair hearing. Requests for such assistance will only be refused for compelling reasons, and in the event, the judge must explain those reasons fully to the LiP and the prospective McKenzie Friend;
A LiP cannot allow a McKenzie Friend to speak directly on their behalf unless invited to do so by the court, either within the confines of the court or in pre-trial meetings;
A LiP is entitled to disclose confidential information and court papers to the McKenzie Friend in order to give them a better understanding of the matter in hand;
A McKenzie Friend may assist with such tasks as taking notes, helping to organise documents, and making suggestions;
McKenzie Friends are not permitted to act as a LiP's agent in relation to court proceedings or manage a LiP's case outside of court. If you receive correspondence from a McKenzie Friend on a LiP's behalf, you should respond to the LiP directly and not to their McKenzie Friend;
A LiP will need to advise the court if a McKenzie Friend will be attending hearings, meetings etc., but a McKenzie Friend has no right of address to the court; and
It is not good practice for the court to exclude the proposed McKenzie Friend from the courtroom or chambers whilst the application for assistance is being made by the unrepresented party, as a LiP who requires a McKenzie Friend is likely to need their assistance to make the application for their appointment in the first instance.

Guidance designed for LiPs who opt for McKenzie Friend assistance has been issued by the President of the Family Division, and provides an overview.

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6.2 Citizens Advice Bureau

The local Citizens Advice Bureau (CAB) may be able to assist LiPs by providing independent, confidential, free and impartial legal advice. If the CAB is unable to assist, they may make referrals to other services. This will often be the in a family law context. Only four CABs give specialist family legal advice, including the Royal Courts of Justice Advice Bureau.

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6.3 Personal Support Unit

The Personal Support Unit (PSU) is a charity which provides assistance for LiPs. It does not provide legal advice, but offers practical guidance and emotional support to help clients solve their problems. It has offices in the Royal Courts of Justice, the Principal Registry of the Family Division, Wandsworth County Court, Manchester Civil Justice Centre and Cardiff Civil Justice Centre.

PSU volunteers are experienced and skilled, and are familiar with court processes. The service is free, independent, confidential and impartial. All aspects of the work are subject to an equal opportunities policy, and the service is offered to anyone who requests it. PSU volunteers are permitted to accompany LiPs in court, provide them with a calming environment prior to and post court hearings and talk them through the case in hand. However, they are not permitted to provide LiPs with legal advice.

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7. More information

7.4 Practice Advice Line

The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 0870 606 2522 from 09:00 to 17:00 on weekdays or email practiceadvice@lawsociety.org.uk

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Parents Against Injustice

Litigants in person - 19 April 2012