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Litigants in Person

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Help with Law - About LIPs [top]

Litigants in person should, unless they have good reason for not doing so:
(1) prepare a written summary of their argument in the same circumstances as those in which a represented party is required to produce a skeleton argument;
(2) prepare a bundle of documents in the same way that a represented party is required to produce a bundle of documents; and
(3) be prepared to put forward their argument within a limited time if they are directed to do so by the court.

This means that litigants in person should identify in advance of the hearing those points which they consider to be their strongest points, and that they should put those points at the forefront of their oral and written submissions to the court.

It is not the function of court officials to give legal advice. However, subject to that, they sometimes assist litigants. Litigants in person who need further assistance should contact the Community Legal Service through their Information Points. The CLS are developing local networks of people giving legal assistance such as law centres, local solicitors or the Citizens' Advice Bureaux. CLS Information Points are being set up in libraries and other public places. Litigants can telephone the CLS to find their nearest CLS Information Point on 0845 608 1122 or can log on to the CLS website at www.justask.org.uk for the CLS directory and for legal information.

The RCJ Advice Bureau off the Main Hall at the Royal Courts of Justice is open from Monday to Friday from 10 am to 1 pm and from 2 pm to 5 pm. The bureau is run by lawyers in conjunction with the Citizens' Advice Bureau and is independent of the court. The Bureau operates on a "first come first served" basis, or telephone advice is available on 0845 120 3715 (or 020 7947 6880) from Monday to Friday between 11 am and 12 noon and between 3 and 4 pm. Do note though they are not always helpful and often have difficulty in answering questions raised.

Where a litigant in person is the applicant, the court may ask one of the represented parties to open the matter briefly and impartially, and to summarise the issues.

A litigant in person has to be their own advocate and should ensure that the court is informed of all relevant decisions and enactments of which you are aware (whether favourable or not to your case) and to draw the court's attention to any material irregularity. You really need to do your homework very thoroughly and become your own expert.

Representatives for other parties should treat litigants in person with consideration but again this doesn't always happen. They should where possible be given photocopies of any authorities which are to be cited before the case starts in addition to the skeleton argument. They should be asked to give their names to the usher if they have not already done so. Representatives for other parties should explain the court's order after the hearing if the litigant in person does not appear to understand it - although this doesn't usually happen!

If a litigant in person wishes to give oral evidence he or she will generally be required to do so from the witness box in the same manner as any other witness of fact.

A litigant in person must give an address for service in England or Wales. If he or she is a claimant, the address will be in the claim form or other document by which the proceedings are brought. If he or she is a defendant, it will be in the acknowledgment of service form which he or she must send to the court on being served with the proceedings. It is essential that any change of address should be notified in writing to Chancery Chambers and to all other parties to the case. Notice of hearing dates will be given by post to litigants at the address shown in the court file. A litigant in person will generally be given a fixed date for trial on application. A litigant in person who wishes to apply for a fixed date should ask the Listing Office for a copy of its Guidance Notes for Litigants in Person.
Litigants in person may use the Supreme Court Library in the Queen's Building at the discretion of the Librarian.

Assistance to litigants in person
A litigant who is acting in person may be assisted at a hearing by another person, often referred to as a McKenzie friend (see McKenzie v. McKenzie [1971] ). The litigant must be present at the hearing. If the hearing is in private, it is a matter of discretion for the court whether such an assistant is allowed to attend the hearing. That may depend, among other things, on the nature of the proceedings. (see note below on McKenzie friend).

The assistant is allowed to help by taking notes, quietly prompting the litigant and offering advice and suggestions to the litigant. The court can, and sometimes does, permit the assistant to address the court on behalf of the litigant, by making an order to that effect under section 27(2)(c) of the Courts and Legal Services Act 1990 (by reference to sections 17 and 18 of that Act), but this is an exceptional course. Some factors which may be relevant to whether this should be permitted have been discussed in reported judgments, including Izzo v. Philip Ross [2002] BIPR 310 and Paragon Finance v. Noueiri (Practice Note) [2001] EWCA Civ 1402 [2001] 1 W.L.R. 2357.

Representation on behalf of companies
Rule 39.6 allows a company or other corporation to be represented at trial by an employee if the employee has been authorised by the company or corporation to appear on its behalf and the court gives permission. Paragraph 5 of PD 39 describes what is needed to obtain permission from the court for this purpose and mentions some of the considerations relevant to the grant or refusal of permission.

Robed and unrobed hearings
Advocates (and judges) wear robes at hearings by High Court Judges of trials (including preliminary issues) and statutory appeals or cases stated. Robes are not worn for other hearings, including appeals from Masters, Bankruptcy Registrars and county courts. The Daily Cause List states, in relation to each Judge's list, whether the matter is to be heard robed or unrobed. Robes are not worn at hearings before Masters. Robes are worn at the following hearings before Bankruptcy and Companies Court Registrars: public examinations of bankrupts and of directors or other officers of companies; applications for discharge from bankruptcy or for suspension of such discharge; all proceedings under the Company Directors Disqualification Act 1986; petitions to wind up companies; final hearings of petitions for the reduction of capital of companies.

Solicitors' rights of audience
At hearings in chambers before 26 April 1999 solicitors had general rights of audience. The fact that a matter which would then have been heard in chambers is now heard in public under Part 39 does not affect rights of audience, so in such matters as would have been heard in chambers previously, the general right of audience for solicitors continues to apply. Such cases included appeals from Masters, applications for summary judgment, and those concerned with pleadings, security for costs and the like, pre-trial reviews, and applications concerned with the administration of a deceased person's estate, a trust or a charity. They did not include applications in what is now the Interim Applications List or the Companies Court, nor appeals from county courts or insolvency appeals. Solicitors do, however, have general rights of audience in personal insolvency matters; this is not affected by whether the hearing is in public or private.
If a solicitor who does not have the appropriate special right of audience wishes to be heard in a case which is not one which, before 26 April 1999, would have been heard in chambers nor a personal insolvency case, an application may be made for the grant of a special right of audience before the particular court and for the particular proceedings under the Courts and Legal Services Act 1990, section 27(2)(c).

Tape recording at hearings
In the Royal Courts of Justice it is normal to record all oral evidence and any judgment delivered during a hearing before a Judge. If any party wishes a recording to be made of any other part of the proceedings, this should be mentioned in advance or at the time of the hearing. At hearings before Masters, it is not normally practicable to record anything other than any oral evidence and the judgment, but these will be recorded. No party or member of the public may use recording equipment without the court's permission.

Preparing a chronology [top]

A useful first step in preparing a chronology is to identify all the key events in the case. Placing them in chronological order will often cast light on significant issues, such as delays in dealing with grievances. A chronology should be simple, not long-winded. The aim is to provide an "at a glance" summary which will help to focus on the history and significance of your case. The chronology should not omit significant events which appear to be detrimental to your case: evasiveness will not impress the court. A skeleton argument may provide an opportunity to summarise why apparent weaknesses in your case are not, when properly viewed, fatal to it.

Preparing a skeleton argument [top]

As a litigant in person you will acting as your own advocate. The skill in preparation which is valued is in preparation of quality and informative skeleton arguments and chronologies. Skeleton arguments, properly prepared and used, are the foremost weapon in the LIPs armoury and the vehicle for short and focused hearings. The impact on the judge of a quality skeleton argument cannot be over-estimated. It is the your first "speech" to the judge which you are allowed to deliver without any interruption by the judge(hopefully!). The judge may legitimately assume that it is your best effort, on which the judge is asked to make at least his provisional judgment, and you must realise that it may be difficult thereafter (if not impossible) to shift that view.

The skill in advocacy is no longer the ability to drone on uninterrupted for hours: that is the perquisite of the judiciary alone. It is the ability to assist the judge, most particularly in answering his questions and resolving his doubts. You must have the resources to deal with the judicial intervention - the confidence not to be overawed, the resilience to respond, the tenacity to challenge, the tact to mollify, the authority to inform and persuade. This requires having the facts at your fingertips and the legal principles in mind and relevant passages in authorities and textbooks at hand - a far greater knowledge of all these is now required than was the position when the judge remained recumbent throughout the proceedings. The premium today is upon flexibility - to deal with issues raised, not as you may have planned, but as they are raised by the judge. It is important to try gaining the judge's trust and confidence in your preparation and accordingly the solidity of your submissions and answers to questions asked.

You may have an expectation of your "day in court". Such expectation should be lost immediately and realise the critical role of the skeleton argument. It takes the place (at least in part) of the opening addressto the judge. Subsequent questioning by the judge is the opportunity to make more - and not less - of what is and can be said.

A skeleton argument is a concise document summarising the main issues about the law and evidence in the case. It is often useful, as it helps to concentrate the mind and save time at the hearing. A "skeleton" should, almost by definition, concentrate on the "bare bones" of the case: Key facts, and the contentions based upon them. In drafting a "skeleton", it is useful to remember that judges will appreciate a document that goes to the heart of the case and avoids rhetorical flourishes.

Arguments in support of Grounds
LIPs going to appeal should remember that the court will normally only allow a very limited time for any hearing to decide whether permission to appeal should be given.
Any separate skeleton argument has to be filed and served on the respondent with your completed notice or, if you are unable to complete your skeleton argument in time, no later than 14 days after filing your notice.
Skeleton arguments should contact a numbered list of points that you intend to argue at the hearing. Each point should be stated in no more than a few sentences. Refer at each point to any documents you are filing with your appellant’s notice which supports that argument.

Try to consider what other information the appeal court might find useful. For example, the court may find it helpful to have a list of people who feature in the case, an explanation of technical terms used in the papers, or a list of events in date order (a chronology). If you are providing any of these, they should be on a separate piece of paper attached to your notice marked with the case or claim number and names of the parties.

Preparing bundle for court [top]

It is important to make sure that the bundle to which you will be referring is in its correct order and paginated in good time. The pleadings and any relevant correspondence between the parties leading up to case will be placed at the start of the bundle followed by the rest of the documents, usually in chronological order. It is helpful for there to be an index to the contents at the front of the bundle in 3 columns: document, date and page number.

You will have to submit three bundles to the court and it is always advisable to take an additional bundle with you at your actual hearing. Courts are notorious for losing files. You are strongly advised that you have someone with you to transcribe the hearing as you will find that the court transcript often bears no resemblance to what transpirs in an actual hearing. Remember to follow the proceedings closely, with the aid of the documents – in case, for instance, there is a need to point out any issue that may have been overlooked or wrongly interpreted.

All documents in the bundle need to be legible. It is surprising how often inadequately photocopied bundles are produced and this can 'put off' the judge.

You are strongly advised to examine your files held by the court and don't be surprised to find documents that you have been unaware of - you have the right to ask for photocopies.

Recoverable cost for LIPs [top]

The costs recoverable by parties in respect of periods when they are or were litigants in person are governed by the Litigants in Person (Costs and Expenses) Act 1975 and by CPR 48.6.

The costs of litigants in person can be divided into four categories:
1. Out of pocket expenses (such as court fees, fares travelling to court, witness fees, etc) if they relate to work or disbursements which would have been done or made by a solicitor had a solicitor acted for the litigant in person.
2. Payments made to obtain expert assistance in connection with assessing the claim for costs. For this purpose a person is an expert if he is a barrister, solicitor, Fellow of the Institute of Legal Executives, Fellow of the Association of Law Costs Draftsmen, or a law costs draftsman who is a member of the Academy of Experts or the Expert Witness Institute.
3. Costs for work done by the litigant in person which caused him or her pecuniary loss (for example, a litigant in person who is employed losing a day’s pay through attending a court hearing or through going on a long journey to interview an essential witness).
4. Costs for work done by a litigant in person which did not cause him or her any pecuniary loss (eg, the examples just given if the work was done during leisure time).

Procedure on detailed assessment
Generally speaking the procedure by which a litigant in person seeks to obtain costs from another party is briefly, service of a bill plus notice of commencement and certain other documents, obtaining a default costs certificate or, if points of dispute are served, serving a reply and/or filing a request for a detailed assessment hearing.
Where a litigant in person wishes to prove that he has suffered financial loss he should produce to the court any written evidence he relies on to support that claim and must serve a copy of that evidence on the paying party at the same time as serving the notice of commencement.

Calculation of disbursements
The litigant in person will be allowed all his reasonable disbursements in full if the costs officer or Costs Judge decides all of the following questions in his or her favour:
1. Were these disbursements actually incurred?
2. If so, at the time they were incurred, did it then appear necessary or at least reasonable to incur them?
3. Are the sums claimed for each disbursement reasonable in amount?
If, in respect of any disbursement the answers to questions (1) or (2) is no, the amount claimed for that disbursement will be wholly disallowed.
If, in respect of any disbursement, the answers to questions (1) and (2) are yes but the answer to question (3) is no, the costs officer or Costs Judge may allow a reduced amount for that disbursement.

Calculation of charges for time spent
The rules as to charges for time spent are more complicated. In order to determine them, the costs officer or Costs Judge must decide four questions:
1. What items of work were done and what time was actually spent on those items?
2. In respect of each item, how long was it reasonable for the litigant in person to spend? The time allowed may be less than the time actually spent by the litigant in person and more than the time that would have been spent by a solicitor, had a solicitor been employed to undertake that item.
3. What hourly rate or other rate is it reasonable to apply in respect of time reasonably spent by the litigant in person?
4. If all the items of work for which costs are recoverable had been undertaken by a solicitor, what would a solicitor’s reasonable charges have been for doing such work?
There is no fixed rate at which pecuniary loss will be quantified. For example, a bank manager may be allowed more than a bank clerk.
There is a fixed maximum rate at which costs for work done in leisure time is recoverable. The current maximum figure is £9.25 per hour reasonably spent.
There is an overall limit on charges for time spent which can never be exceeded. The cost officer or Costs Judge cannot allow more than two thirds of the sum determined in answer to question (4) above.

Access to Justice - Lord Woolf [top]
Chapter 17 - Litigants in Person
1. At every level of the civil justice system litigants are bringing cases without any formal legal representation. A number do so from choice, particularly within the small claims scheme. Many more are forced to do so because they cannot afford the high and often disproportionate costs of legal representation and are not eligible for legal aid. The same reason leads to many more being effectively barred from access to justice as they either do not know of their rights to make or defend a claim or do not know how to do so. Notwithstanding their difficulties throughout the justice system, however, their numbers are increasing. The precise extent of the increase is unknown. It should, from now on, be monitored in cases where a defence has been served.
2. Only too often the litigant in person is regarded as a problem for judges and for the court system rather than the person for whom the system of civil justice exists. The true problem is the court system and its procedures which are still too often inaccessible and incomprehensible to ordinary people.
3. I believe it is essential to the success of my proposals that the courts themselves should in future take a more pro-active role in relation to unrepresented litigants, both in giving information about sources of professional advice and other outside help, and in themselves providing direct assistance. Both court staff and judges must recognize the needs of litigants in person and, if necessary, adjust their approach so that there is no suggestion that they are being treated as an exception or even a nuisance.
4. At the same time there is a need to improve the advice and assistance available and to ensure that litigants have early contact with whatever source of advice is available. Although the judge can preserve equality of arms at the hearing between represented and unrepresented litigants, and although my proposals for small claims envisage a greater degree of judicial involvement to ensure that litigants present the case more effectively, the judge's help in presenting the unrepresented party's case is not a substitute for thorough preparation by a professional or other adviser.
5. Contributors to the provincial seminars and representatives of the Advice Services Alliance have all stressed that it is particularly important to ensure that effective help and advice are available to those litigants who are most disadvantaged and least able to help themselves. The key needs of litigants are for:
• a system which is understandable and responsive to their needs;
• information and advice on different ways of resolving problems;
• information and advice on how to make a claim and how to respond to a claim, as a defendant; and
• advice and assistance on preparing and presenting their case.
6. There is also a need for education about the legal system in a broader sense. Citizens need to be informed about their rights and obligations in order to become responsible members of society. I commend the educational work which is being done in this field by organisations such as the Citizenship Foundation which was established in 1989 and has built on the pioneering work of the Law in Education Project.
The new rules
7. One of the objectives of my Inquiry is to simplify the rules and procedures of civil litigation so that they will be more easily understood and followed by litigants as well as their advisers. The present rules are complex and daunting in themselves. They are made more impenetrable for the average litigant in person by the accretion of the case law which amplifies many of the rules. The language and format of the rules act as a barrier to the use of the civil justice system by ordinary people and make it difficult for them to bring or defend a case if they cannot afford legal assistance or representation. The situation is made worse for them if they have tried to understand and comply with the rules only to find that they appear to be flouted by lawyers and that this is effectively condoned by the courts.
8. My approach to the rules is set out in chapter 26. That chapter contains examples of the complexity of the existing procedure and language. I intend that the language of the rules and the way they are set out should be easier to understand. To help achieve this, Helen Brown from the Information and Production Department of the National Association of Citizens Advice Bureaux and Marlene Winfield from the National Consumer Council are included in the small group advising on preparation of the rules.
9. The new rules will, in general, provide one way to begin court proceedings, rather than several different ways as at present. This will make it easier for all litigants, not only litigants in person. The forms are an important aspect of this. The Civil Justice Review recommended the simplification of forms (Recommendation 49). I hope to achieve this by recommending a single improved claim form. It will assist litigants to set out the information on which their claim is based. It will also require information to be included so that the court, rather than the litigant, can decide which is the correct track and the correct court for the case. This should make entry to the courts easier.
10. From the consultation process I am aware of concern that many people with a valid defence do not respond to proceedings issued against them. Their need is not only for clear forms to enable them to set this out but, more often, for advice on whether they have a defence. I deal with this in paragraphs 30-32 below.
Information on alternatives to litigation
11. It is of key importance to provide information on alternatives to the court system. Many disputes in which litigants in person are involved may be capable of being resolved by alternatives to normal court litigation. These include the small claims scheme itself - even for cases above the limit, private arbitration and trade arbitration schemes, mediation and ombudsmen. I deal with these in more detail in chapter 18.
12. Research by the Consumers' Association has shown that many people are not aware of either the small claims scheme or alternative means of resolving disputes. The Court Service should provide information about those alternatives, preferably in a way which gathers together information on the whole range of alternatives. It would also be helpful for staff to be trained to identify cases where alternatives might be more appropriate and to give guidance to prospective litigants so that they can investigate these more fully. This will require the exchange of more information between the bodies providing the various forms of ADR and the courts than occurs at present.
13. In addition, I am proposing that Masters and district judges should draw the possibility of using alternatives to litigants' attention at key stages in the case management process, where this is appropriate.
Information and advice from the court
14. The Courts Charter sets out the current role of court staff in providing information and assistance to litigants in person. It states:
"Where possible, court staff will advise on technical procedure and help you fill in forms. They cannot, however, give legal advice. For this please consult a solicitor, Citizens Advice Bureau or Law Centre. ... Leaflets are available to help both plaintiffs and defendants through the various stages of a claim. We will give you the forms you need and will be available to explain what to do next."
15. I welcome this undertaking by the Court Service as a clear commitment to serving the public. The National Survey of Court Users, published by the Lord Chancellor's Department in March 1995, indicates that the vast majority of court users who are not legal professionals have a positive view of court staff. Ninety six per cent of these respondents found the staff polite, 93 per cent thought they were easy to understand, 92 per cent said they were friendly and 84 per cent found them knowledgeable. Only 3 per cent of those who had used the public counter in a court expressed dissatisfaction with the service they had received.
16. These results are clearly very encouraging. I would, however, like to see the provision of assistance as an invariable obligation of the courts. In the United States, court staff are specifically employed to assist litigants in person to prepare the court documents and to make courtroom presentations. Here it is felt that the role of court staff in providing advice should be strictly limited. There are reasons for this: the need to avoid giving the impression of partiality and the sheer practical problem of resources. Clearly, court staff cannot give advice on whether a potential litigant has a sound case in law. As the Civil Justice Review recommended, however, they should be able to advise on "the remedies open to any litigant in relation to a particular claim, the procedure for pursuing those remedies and the precise manner in which court forms should be completed" (Civil Justice Review, paragraph 363). In relation to concerns about preserving impartiality, the Civil Justice Review commented: "Provided the staff are prepared to assist any litigant on request there can be no basis for any fear or accusation of partiality".
17. The use of new technology in the county courts through LOCCS (Local County Court System) and other systems will in due course free staff from much time consuming and repetitive work. This would release resources to provide better trained and informed staff to undertake the higher quality and more demanding work of assisting litigants and providing support to judges on case management.
18. While all court staff need to be friendly and helpful to court users, it is worth recognising the very special role which receptionists and advisers play and the key role played by ushers who often are the court staff who deal with people when they are at their most vulnerable. Many respondents to my Inquiry have praised the way in which ushers have looked after them and respected their need for information and support. An example of a step in the right direction is provided by the properly staffed information desks at the entrances to the new Birmingham County Court and at the Central London County Court.
19. An alternative approach would be to provide advice through court-based or duty advice and assistance schemes funded by the legal aid scheme. I recommend that the Lord Chancellor, in the context of the consultation paper on legal aid and the aims of the Court Service, should determine and then implement the best way in which this essential front-line service should be provided.
The role of new technology: "kiosks"
20. Procedural and other advice to litigants is at present provided on a one to one basis. This imposes heavy time demands on court staff and advisers alike. It also requires considerable expertise to be effective. A growth in litigants in person will increase the burden on all potential givers of advice.
21. Technological innovations, including "kiosks", already provide a means of assisting litigants through computer software programmes. These can, by themselves or assisted by advisers or court staff, guide litigants through the possible range of remedies, the criteria for choice of the appropriate dispute resolution system, the setting out of key facts, the necessary form filling and the requirements of the procedure for documents, expert or other evidence.
22. The provision of such kiosks or other IT facilities need not be limited to the court premises. In time, versions for individual use could helpfully be sited in libraries, Citizens Advice Bureaux, post offices, doctors' surgeries, benefit offices and shopping centres. In the first instance, however, a computer based facility available in courts to help litigants to fill in and print out their claim or defence forms would be of great assistance. I recommend that a trial of the use of appropriate kiosks should commence at selected courts.
Information on the civil justice system
23. Rules and procedure are only one aspect of the civil justice system which litigants in person find difficult to understand. The physical layout of courts and the roles of judges, advocates, legal representatives, ushers and other court staff are all strange and unfamiliar. For most litigants in person their first court appearance will be their only appearance. They have no opportunity to acquire familiarity or understanding of the system. Nervousness can inhibit the effective presentation of a litigant's case and make it difficult to understand what is happening.
24. It is clear, from submissions from litigants in person and from discussion at meetings organised by the Nuffield Foundation and the National Consumer Council, that this is a significant problem. Several litigants have suggested that it would be helpful to have a video of a typical court building and courtroom with explanations of how a case will be conducted and who the key participants will be. A video on these lines was developed in New South Wales and is widely regarded as a model approach.
25. Although the Lord Chancellor's Department provides information about procedures in leaflets, there is no comprehensive general explanation of what the process will be like. The development of a television-based culture means that many people now find it easier to assimilate new and detailed information from screen presentations rather than from text-based leaflets. An interactive video is clearly the ideal way of providing this but it is also considerably more expensive than leaflets. A simple video, based on proper research into litigants' requirements for information, which could be studied at leisure, would make a significant difference to their understanding. It would reduce the burden on court staff and representatives of providing repeated explanations on a one to one basis. The feasibility of providing such videos should be investigated.
26. There is also a general need for information to be realistic. A number of litigants have stressed that the present leaflets can make the system look simpler than it is, especially if the other side is being deliberately unhelpful. Enforcement and its difficulties are a particular problem even though this is mentioned in explanatory leaflets at present. A more effective way of delivering the message is required and research is needed to establish how best to achieve this.
27. The provision of leaflets and forms is also of key importance. Where forms are part of a series it is important that the whole series should always be available. This small point has been referred to repeatedly by individual users. Information on legal aid, local advice agencies, trading standards officers, ombudsmen, housing advice centres and Shelter should all be visible in courts and any leaflets they produce should be readily available.
28. Where forms have to be filled in, reasonable facilities, preferably in private, should be available and in due course I hope that the court kiosk or some other IT solution will be available. The provision of such basic essentials as pay telephones, fax machines and copying machines can make a significant difference to access for unrepresented litigants and can also assist professional litigators. Both should also have access to a court library, which again, in the course of time, would presumably be available via a computer.
Access to effective advice
29. The Civil Justice Review made a number of detailed recommendations to improve the information and advice given to litigants, including the provision of information on local advice agencies with each summons in small claims, debt, housing and personal injury cases (Recommendation 50). It also recommended staff training to enable them to give direct assistance to the public in handling their cases (Recommendation 51), establishing effective liaison with advice agencies and the funding by legal aid of advice agency duty representatives in court (Recommendation 52). While there has been some progress on these recommendations, their implementation and their success in dealing with the underlying problems has been patchy (information on local advice schemes, for example, is provided only in relation to housing cases). All the recommendations should now be fully implemented.
Advice to defendants
30. A clear message from my process of consultation has been that defendants as well as plaintiffs need better access to advice and assistance. This is especially so in relation to debtors, tenants and mortgage borrowers faced with a claim for repossession of their homes and rent or mortgage arrears. Many of these will have multiple debt problems or may have a valid claim for housing disrepair. To meet their needs, a range of advice is required on multiple debt and paying off arrears, advice on the issue of reasonableness for tenants facing repossession and advice on potential counterclaims.
31. Following a recommendation of the Civil Justice Review, the county court forms used in possession cases were amended in 1993 so that landlords and mortgage lenders are now required to give as much information as possible about the defendant's financial circumstances, to enable the court to reach an informed decision as to the reasonableness of granting a possession order. These reforms have undoubtedly succeeded to some extent in improving the quality of information available to the courts, but there remains a significant number of defendants in possession cases who do not attend court or seek advice on how to deal with a summons. The experience of duty advice schemes suggests that a significant number of these defendants are in a position to make proposals for payment, and some may have a defence. The system at present fails these defendants in failing to ensure that they receive effective advice.
32. The legal aid consultation paper and the pilot project on non-solicitor franchising by the Legal Aid Board may provide an opportunity to develop new approaches to the provision of effective advice and assistance in these key areas. There is a general need to ensure that potential litigants are directed to appropriate sources of advice and to improve the efficacy of those services by exploring the best ways to provide this. In larger court centres there should be a permanent advice centre on the lines of the permanent Citizens Advice Bureaux in Liverpool Combined Court Centre and in the Royal Courts of Justice. The latter is, however, open only four days a week at present. This is not sufficient in such a busy location with so many demands on its resources, and the provision of adequate funding to enable the Citizens Advice Bureau to offer a service throughout court office hours may be a more cost effective use of resources than a mixture of advice from court staff and referral to other agencies. In courts with smaller work loads, there should be an investigation as to whether court-based advice agencies are more effective and accessible than those based elsewhere. This should be tested as part of the new proposals for ensuring that legal aid is more effective in reaching those most in need.
Duty advice schemes
33. More work is required to ensure that people facing legal proceedings obtain advice before the day of the hearing. For those who fail to obtain advice beforehand, the court-based duty advice schemes provide a final opportunity for help, albeit at the last minute. Over the last decade a number of duty advice schemes have been established in the county courts, mainly as offshoots of advice agencies and law centres. In 1992, the National Consumer Council in Court without Advice found just over 30 such schemes, mainly in urban areas, at a time when there were 267 county courts. The schemes vary in their operation: some provide advice alone, others representation in court or help in negotiating with an opponent. Some only offer advice on the day while others will provide continuing assistance on the case. Some schemes operate on housing possession days, others extend beyond this to debt matters. A detailed examination of a number of the schemes by Lee Bridges for the Legal Aid Board in 1991 (L. Bridges, The Provision of Duty Advice Schemes in County Courts, Legal Aid Board, 1991, p34) concluded of the one providing the most comprehensive service:
"Not only does the scheme cover both housing and debt cases, but its assistance to clients extends across pre-court advice, both advice and representation on the day in court, and extensive follow-up work. This was the only scheme in the survey where the sending out of notices about the service with the court papers appears to have resulted in any significant pre-court contact with clients or even to have been a source of client self-referrals to the scheme on the day of the court hearing."
The research noted that this duty advice scheme was located in one of the less busy courts so that it might prove difficult to replicate.
34. As the Civil Justice Review recognised, the success of duty advice schemes depends partly on court support. The Review recommended that courts provide accommodation for duty advice services (Recommendation 52(iii)). Some courts now do this, either allocating an interview room for the day or, more satisfactorily from the point of view of the schemes, a permanent place as well where files and books can be left. Courts also routinely provide a telephone and photocopying facilities. This is helpful to the effective operation of the schemes and I recommend that the provision of permanent facilities should apply to all schemes where possible. An important contribution to court support for effective duty advice schemes can be made by a court's general listing practices. Liaison between a court and a scheme as to listing cases on a particular day can make the scheme more efficient. Especially in the less busy courts, listing can be used to concentrate together particular types of cases where advice is likely to be sought so that a scheme can justify an adviser being present. Conversely, changes in listing practices without consultation can make it difficult or impossible for advisers to attend.
35. The Civil Justice Review recommended appointment of court officers as a link with advice agencies. Liaison on duty advice schemes should clearly be one of their important functions. Involving advice agencies in court users' committees can also help. I have received strong support from judges and court staff for duty advice schemes. They appreciate the additional help given to defendants, the impact this has on judicial decision making, and the ability to list more cases which the scheme makes possible. In its research the National Consumer Council noted:
"Duty advice schemes promote efficiency by helping defendants to make reasonable offers to clear arrears. District judges in particular were glad of the assistance offered to defendants. They found it made people less anxious about the legal proceedings. They could also be more confident that the defendant is fully aware of all the implications of the hearing. If defendants are not receiving all the benefits to which they are entitled, most advisers are in a position to remedy this."
But, importantly, it went on to say:
"The atmosphere at court is clearly very important. Some of the lay advisers were concerned about negative attitudes towards duty advisers and debtors. They reported that the judiciary could be patronising towards lay advisers - particularly black women - and, in general, there is an attitude that lay advisers are 'not of the profession'. These problems were not widely reported, but do undermine the work of lay advisers."
36. Support for duty advice schemes should be a duty of the court and of the judiciary, both in terms of providing accommodation and other resources and encouraging litigants to use them. Part-time judges should be made aware of the schemes by courts and of the need to support them through Judicial Studies Board training. The National Consumer Council identified the key role of ushers, bailiffs and other more junior court staff in channelling people to duty advice schemes. It also noted the variable quality of information and publicity about the schemes, and published detailed good practice guidelines covering the organisation and in-court operation of duty advice schemes, publicity, recruitment and training.
37. Proper funding is basic to the success of duty advice schemes. The Civil Justice Review recommended that advice agencies should be encouraged to run duty advice schemes, and if they did should be eligible for legal aid funding (Recommendation 52). The Legal Aid Board commissioned some detailed research on how many county courts had a level of business justifying a duty advice service and its potential cost. The research found that housing and debt work was concentrated in a limited number of courts (some 65 for housing and 82 for debt). Estimating the number of persons who might use the service, and the average time which might be demanded for each case, it calculated that the cost of a duty advice scheme in those courts on Green Form rates to be from £800,000 to £1.7 million. Despite these very modest amounts the resources have not been made available. I recommend that there should be a duty advice scheme funded by legal aid at each of the courts identified as handling housing and debt work. I also recommend the exploration of ways of providing more general assistance, by the provision of a Citizens Advice Bureau or similar facility at those court centres where the workload would justify it and that the possibility of legal aid funding for such a service should be considered.
38. All the evidence I have received, as well as earlier research, makes it clear that advice and representation can make a difference to outcome even when it is last minute advice and representation provided by court-based duty advice schemes. Apart from the benefits to the individuals concerned, there are public benefits as well. Court business runs more smoothly. More cases can be listed. And if, say, a person in a housing possession case obtains an adjournment or dismissal, there might be public expenditure savings in not rehousing someone who would otherwise be homeless.

A new approach to legal advice
39. Not all litigants need assistance with every aspect of their case. Some may be able to undertake much of the preparatory and paper work themselves and need access to competent advice only at key points in the progress of their case. Initially this could be as to the validity of their claim or defence and the way in which they should seek to prove it. This should then be followed up at key stages, particularly in assessing whether an offer from the other side should be accepted. In Arizona and in California a new approach has been developed to provide advice and assistance on this basis. Known as "unbundling" it was outlined at the Legal Action Group Annual Conference 1994 by Forrest Mosten, one of the pioneers of the approach. He said:
"The essence of unbundling is consumer choice. The consumer is empowered to make a choice of lawyers and a choice about the scope and depth of their use of those they select. It is up to the legal profession to educate the client that this is an option".
40. "Unbundling" involves the "bundle" of work that has to be done on the case being taken apart and shared between the adviser and the litigant. In terms of paying clients there may be a need to work out new arrangements for professional negligence insurance but I am confident that this is something that can be done with the good will of the profession and the commitment of the professional bodies. This would offer a real way forward in terms of making justice accessible and understandable to those on moderate incomes who are currently not eligible for legal aid. Such an approach poses a challenge to both professional lawyers and other advisers as to how best to develop schemes which can provide the level of assistance needed within a cost ceiling appropriate to the matter at issue. I am well aware that this is something which is already done by law centres and other specialist advice agencies. A different approach is the Law Shop in Bristol where potential litigants can obtain advice and have on-the-spot access to a reference library, books and leaflets, legal forms, fax, word processor and photocopier.
Interventionist judges at court hearings
41. Even those litigants who have had legal or other help in the preparation of their cases may be at a disadvantage if they are unrepresented in court, particularly if they face a legally represented opponent. They may be nervous, unsure of what is expected of them, feel unable to present their case convincingly or to cross-examine effectively. In these circumstances, the judge has a critical role in ensuring that the unrepresented party gets a fair hearing and understands and accepts the outcome of the case.
42. Conducting a hearing at which one or both parties are unrepresented presents a difficult challenge to judges who are more used to hearing cases presented by legally qualified advocates. Many judges are anxious to assist an unrepresented party in identifying the relevant issues, but there has been a traditional reluctance to "enter the ring" for fear of compromising the judges' role as impartial adjudicators. Most district judges now adopt an interventionist style with small claims. Yet for the bulk of litigation conducted before them, High Court and Circuit judges have not had to cultivate an interventionist style of judging. This may have to change with the increase in litigants in person. Lord Justice Otton is looking at this problem in relation to litigants in person in the High Court and Court of Appeal. I believe it is essential that all judges should be prepared to adopt a more interventionist approach.
43. Unrepresented litigants need special help in:
• understanding the procedure followed during the hearing;
• presenting their case;
• testing the evidence of an opponent and cross-examination; and
• presenting an appeal.
44. Judges also need to recognise that litigants in person may be at a general disadvantage in the preparation and presentation of their case. Judges can help litigants in person by treating them with respect, without patronising either the litigants, their witnesses or their advisers and representatives. In particular, it is important to avoid appearing to defer to lawyers or to be giving them priority, for example by hearing cases where counsel are involved first.
45. The judge has a key role to play in explaining the procedures that will be followed, preventing any bullying by opposing counsel and making clear any legal or technical points that the litigant may have to overcome. In this respect the judge may well intervene to explain difficult points or to question opposing witnesses. He may also need to take a lead in getting the relevant evidence from the litigant. In doing all this, it is important to use simple rather than legalistic language and to adopt a sensible approach to the rules of evidence and procedure where they are applicable. It is particularly helpful to unrepresented litigants if the judge can give a clear and succinct judgment. If the case has gone against them it is important to explain why it has done so and if the litigant has been successful to explain what is required on enforcement.
46. If judges are to take this more interventionist approach at every level in the system, handling cases which involve unrepresented litigants will need to be fully covered in judicial training. I have suggested in the chapter on small claims that training should be available for district judges, who already approach small claims on an interventionist basis, to refine and improve the way in which they do so. All judges who deal with cases involving litigants in person could benefit from similar training and guidance.
47. The Civil Justice Review recommended that not only with small claims, but also with housing and debt cases in which small litigants are not normally represented, cases should be conducted on an interventionist basis (Recommendation 47). I support this approach. It should help to compensate for the inadequacies of the unrepresented and counteract the advantages of the represented.
48. There were suggestions at the time of the Civil Justice Review that a specialist housing court should be established, but the Review itself adopted a different approach. Its central recommendation in relation to housing cases was a simplified form of housing action for non-possession cases, to include disrepair, long leases, service agreements, non-return of deposits and a range of other matters. The procedure would be similar to the small claims procedure, and the court would have the power and the resources to appoint an expert. This recommendation, which I regard as having merit, has not yet been implemented.
49. It has been impressed on me by many respondents that housing litigation is an area in which there is potential for dramatic growth. This may occur in repossession cases because of changes to the housing benefit rules in relation to payment of mortgages. There is also a large number of potential actions by tenants in relation to disrepair. There is a need for a swift, relatively cheap and accessible procedure for those who are not at present eligible for legal aid, but may have significant problems arising from long leases or service agreements or rent deposits. On the other hand there is a need to ensure proper advice and representation for those currently eligible for legal aid who may be less articulate and less able to pursue proceedings on their own in areas such as disrepair.
50. This is an area where reform of the substantive law, which is at present fragmented and complex, could do more than anything to reduce cost and delay. I recommend that such reform should receive high priority. Because of the complexity of the law in this area, there is a particular need for specialist advice to establish the legal merits of the case and to ensure that cases are progressed as effectively as possible. Although there is a growing number of solicitors specialising in housing law, and such services may be available in specialist law centres and housing advice centres, coverage is patchy and tends to be confined to the larger urban areas. There is a need to ensure access and effective advice throughout the country, especially in rural areas. Information technology may be able to help in extending the availability of guidance, for example through the use of legal information systems to support non-specialist advisers, which could be combined with access to specialists by telephone.
51. While the law remains as complex as it is at present, the court should be prepared either to transfer all defended non-possession housing cases where there is an unrepresented litigant to the small claims procedure, or to transfer them into the new fast track procedure on grounds of complexity or the litigant's inability to manage unaided. The court's decision on the correct approach would be assisted by criteria to ensure a consistent exercise of judicial discretion in this respect. It would be preferable if it could be supported by a cadre of district judges with specialist expertise in housing law.
Rural areas
52. There is a particular need to provide improved access to those in rural areas, which may be remote, ill-served by public transport or at a considerable distance from a local court. In the future, new technology may provide a key to this. Kiosks will enable the Court Service to maintain and improve access to justice in areas served by smaller courts currently under threat of closure. I would hope that no further closures will be implemented until alternative arrangements, such as kiosks, had been developed to provide continuing access to the court system. In the meantime, innovative approaches are required to reach out to people in these areas. Mobile courts, similar to library vans, could tour smaller country towns, providing both advice and information and small claims hearings when required. I understand that enterprising chief clerks have already suggested this as a way of preserving effective access to justice in those areas where court callers are very few or where no court exists.
53. Small claims and cases in the fast track, where there is a strong local element, could more often be heard locally in magistrates' courts or in village halls or other buildings used as one-off courtrooms. This would meet the concerns expressed by many at my provincial seminars about the substantial time and cost involved in attending far away trial centres.
Extended opening hours
54. In all areas the idea of evening or weekend courts should be explored again. It has the potential to provide access for those at work or with day-time responsibilities. I understand that a previous pilot scheme was not successful and it may be that demand for such a service would vary from one court to another. Effective publicity would be required to ensure that potential users were well-informed about the scheme.
Facilities for litigants
55. The Civil Justice Review drew attention to the need to improve facilities in many courts, despite the substantial improvements in new and refurbished courts. The Heilbron/Hodge report also found it necessary to draw attention to the practical needs of litigants. The National Survey of Court Users found that under 50 per cent of respondents were satisfied with the provision of car parking, telephones out of public earshot, refreshments and separate waiting areas.
56. In all my discussions with individual litigants and with their representatives the importance of such practical matters has been impressed on me time and again. Those coming to the court for the first time, both professional and unrepresented litigants alike, require well signposted and accessible courts and offices, preferably at the same place although this has proved impossible for the Central London County Court. Clear signposting within the court building helped people to find their way and reduced the pressure on court staff to answer simple queries. Signposting should be not only in English but in the principal ethnic languages relevant to the area.
57. I know that at Bow County Court, the Chief Clerk has arranged for members of his staff from the local ethnic communities to be available to answer queries in the relevant language where possible. This is very much an impromptu and informal arrangement but gives a clear indication of the new way in which courts are assessing the needs of their users and striving to find better ways of meeting them. Other courts are experimenting with ways of ensuring that the staff who are available at the counter have appropriate expertise and are able to answer a wide range of enquiries. The new emphasis on customer service should help to provide what all court users need: friendly and accessible court staff who understand what they are talking about and are well qualified to help.
My main recommendations are as follows:
• The provision of assistance to litigants should be an invariable obligation of the courts.
• In the context of the consultation paper on legal aid and the aims of the Court Service, the Lord Chancellor should determine and implement the best way of providing advice through court-based or duty advice and assistance schemes funded by the Legal Aid Board.
• Information technology kiosks should be introduced on a trial basis at selected courts.
• Research should be conducted into litigants' information needs and the most helpful way of presenting information. The feasibility of providing an explanatory video on the court process should be investigated.
• The courts should provide reasonable facilities, preferably in private, for filling in forms.
• Both professional litigators and unrepresented litigants should have access to court libraries.
• All the Civil Justice Review's recommendations on the provision of information and advice to litigants should be fully implemented.
• There should be a permanent advice centre in larger courts. In courts with smaller workloads, there should be an investigation as to whether court-based advice agencies are more effective than those located elsewhere.
• Permanent facilities should be provided for all court-based advice schemes, where possible.
• There should be a duty advice scheme funded by legal aid at each of the courts identified as handling substantial levels of debt and housing work. Ways of providing more general assistance, by the provision of a Citizens Advice Bureau or similar facility at court centres where the workload would justify it, should be explored and the possibility of legal aid funding for such a service should be considered.
• Judges should be prepared to adopt an interventionist approach in all cases involving an unrepresented party and the handling of such cases should be fully covered in judicial training.
• The law in relation to housing should be simplified.
• Alternative ways of providing court services in rural areas should be explored, including mobile courts providing small claims hearings as well as advice and information.
• The possibility of holding evening or weekend courts should be re examined.
• Court buildings should be clearly signposted, in appropriate minority languages as well as English.

McKenzie Friend [top]

On 28 July 1999 Lord Woolf, the Master of the Rolls, ruled in the Court of Appeal that to allow a litigant in person the assistance of a McKenzie Friend may be "undesirable in the interests of justice".
Ruling in the case of Regina v Bow County Court ex parte Pelling Lord Woolf, sitting with Lord Justice Brooke and Lord Justice Robert Walker, decreed that a litigant in person has no right to such assistance.
Where a hearing was in public, assistance should be allowed "unless the judge is satisfied that fairness and the interests of justice do not require a litigant in person to have the assistance of a McKenzie Friend".
If the hearing was in private - with the press and public excluded - the nature of proceedings "may make it undesirable in the interests of justice for a McKenzie Friend to assist".
A judge will now be required to give reasons for excluding a McKenzie Friend, but acceptable reasons will include the "confidential" nature of the proceedings or the opinion of the judge that the litigant "had no need" of assistance.
Read the article Your Right to a Friend published in The Times (17 August 1999).
Read the Times Law Report (18 August 1999) of Lord Woolf's judgement

Legal resources in London [top]
It is always advisable to verify information such as opening hours, especially during holiday periods, before visiting.

(London School of Economics)
25 Southampton Buildings, London, WC2A 1PH
Tel: 020 7955 7229 (General); 020 7955 6733 (Admissions)
Fax: 020 7955 7454
Web Address: www.lse.ac.uk
Underground: Holborn or Temple
Access: admission charge for individual solicitors, £10 per day, £30 per week or £75 per month, 3m £150. Corporate membership for law firms: £350 per person pa, £500 for 5 members pa. Permits for students.
Open: Term-time: Mon - Fri 9.00-11.00, Sat - Sun 11.00 - 9.00. Reduced hours in vacations: phone for details
Photocopying: Self-service by rechargeable cards
Stock: UK law including law reports, periodicals and texts. Official publications and statistics collection. International and comparative law collection. Depository for United Nations material and European Documentation Centre

Based at The British Library
96 Euston Road, London, NW1 2DB
Tel: 020 7412 7536 (Official Publications & Social Policy); 7412 7454 / 7977 (Business); 7412 7919 (Business Patents); 7412 7901 (Foreign Patents)
Fax: 020 7412 7761 (General)
E-mail: social-policy@bl.uk (General); patents-information@bl.uk (Patents); business-information@bl.uk (Business)
Web Address:www.bl.uk
Underground: Kings Cross
Access: Public access by Readers Ticket: apply on-site. Reference only
Open: Mon 10-8, Tue-Thu 9.30-8.00, Fri-Sat 9.30–5.00
Photocopying: serviced and self-service copying available. Priced

Document Supply Service.
Research Services: free Quick Enquiry service and priced Research Service available. Ask for details of current rates.
Stock: National Library for science, technology, patents and business. Includes physical sciences and technologies; trade marks, patents; commercial and business information on companies, markets and products.

1 Brewers' Hall Garden, London EC2V 5BX
Tel: 020 7332 1812 (General Enquiries); 020 7600 1461 (Business Information Focus)
Fax: 020 7600 1185 (Business Information Focus)
Underground: Moorgate
Access: Public Library. Reference only
Open: Mon - Fri 9.30-5.00
Photocopying: self-service, coin operated or meter facility
Research Services: priced research service Business Information Focus. Initial consultation free. Useful guides.
Stock: Business orientated, non-specialist legal materials for local needs. Company annual reports and financial information, market reports and economic reports. Law Society Library has lists of City Business Library law reports and periodicals.

Aldermanbury, London EC2P 2EJ
Tel: 020 7332 1868 / 1870 (General); 020 7332 1839 (Print Room)
Email: printedbooks.guildhall@corpoflondon.gov.uk
Web Address: www.cityof london.gov.uk
Underground: St Paul's, Bank or Moorgate
Access: Public Library. Reference only.
Open: Mon - Sat 9.30-5.00. Saturdays: enquiry service is limited and Print Room is closed.
Photocopying: publications dated 1800-1900 must be ordered; 1900- by self-service, coin or card operated. All copying subject to staff approval.
Stock: Comprehensive collections of English statutes, parliamentary papers and law reports. Current editions of Halsbury’s and Current Law but virtually no legal textbooks. Complete run of London Gazette. Old Bailey Sessions Papers 1684-1913. Stock Exchange Daily List (almost complete). Complete collection of Financial Times. Print Room holds illustrations and photographs (eg. judges and courtrooms).

The Library
113 Chancery Lane
London WC2A 1PL
Dx 56 LOND/CHANCERY LN Library Enquiries: 0870-606 2511
Library Administration: 020 7320 5699
Library Fax: 020 7831 1687
Library E-mail: lib-enq@lawsociety.org.ukHOLBORN LIBRARY
32-38 Theobalds Road, London WC1X 8PA
Tel: 020 7413 6343 / 6345 / 6346
Underground: Holborn or Chancery Lane
Access: Public Library. Lending facilities but legal materials are reference only.
Open: Mon & Thurs 10.00-7.00, Tues 10.00-6.00, Fri 10.00-6.00, Sat 10.00-5.00, (closed Wed & Sun)
Photocopying: self-service, coin operated
Stock: Substantial amount of basic legal reference sources incl. Halsbury’s, Current Law, Atkin's Court Forms, White & Green Books, Encyclopaedia of Forms and Precedents, Civil Procedure Rules. Law reports incl. Official Series, All ER and WLR and a few journals. Basic practitioners texts.

17 Russell Square, London WC1B 5DR
Library Enquiries: 020 7862 5790 General: 020 7862 5800
Library Fax: 020 7862 5770
Web Address: http://ials.sas.ac.uk
Underground: Russell Square
Access: admission charge. Scale of subscription charges for individual solicitors (from £20 per day to £216.20 per annum); subscription scheme available for law firms. Ask for details.
Open: Mon – Fri 9.30 - 7.45, Sat 10.00 - 5.15. Usually closed last two weeks in September for stock taking.
Photocopying: Self-service, by voucher card only. An institutional Library Subscription Scheme incorporating personal access, telephone enquiry service and document supply service is available: ask for details.
Stock: Includes legal source materials for the USA, the Commonwealth and Western Europe. Holds former collection of the Foreign and Commonwealth Office Commonwealth Law Library and substantial holdings in the area of public international law. Extensive web site links to foreign legal materials.

5 St Martin's Street, London WC2H 7HP
Tel: 020 7641 4634; Information for Business service: 020 7641 4603
Fax: 020 7641 4606; Information for Business service: 020 7641 6527
Web Address: www.westminister.gov.uk
Underground: Leicester Square
Access: Public Library
Open: Mon - Fri 10.00-8.00, Sat 10.00-5.00
Photocopying: Self-service, coin operated or cashcard
Research Services: priced ‘Information for Business’ service which includes Pepper v Hart Hansard searches
Stock: reasonable collection of legal textbooks and all major legal reference services. Extensive holdings of UK Official Publications including parliamentary debates, Standing Committee Official Reports and local Statutory Instruments. European Depository Library (includes ‘S’ series), OECD holdings and statistical collections. Extensive business information collection. The Law Society Library has further details as well as the Westminster Union List of Periodicals (WULOP).

In addition, specialist information may be available from the following libraries but please check first for permission to use:-
British Institute of International and Comparative Law 020 8662 5168
Chartered Insurance Institute 020 7606 3835
Hammersmith Library 020 8576 5053
Institute of Chartered Accountants 020 7628 7070
Royal Institute of British Architects 020 7580 5533
Royal Institution of Chartered Surveyors 020 7222 7000
Supreme Court Library (litigants in person) 020 7936 6587

Other useful telephone numbers include:-
Butterworths: Bookshop 020 7405 2500
- Sales Enquiries 020 7464 1400
- Lexis Direct 020 7464 1323
Hammicks Professional Bookshop 020 7405 5711
The Stationery Office 020 7873 0011
House of Commons Public Information Office 020 7219 4272
Sweet & Maxwell: 020 7242 2548
- Document Delivery Service 01422 888 000
Wildy's Bookshop (new and second-hand books) 020 7242 5778

Judges guide to LIPs [top]

It is vital for all judges to realise that most unrepresented parties are stressed and worried people operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant. They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially if appearing against a represented party. The outcome of the case may well have a profound effect and long-term consequences upon their life.

Judges and those who chair tribunals must always be aware of the feelings and difficulties experienced by unrepresented parties and must be ready and able to help them, especially if a represented party is being oppressive or aggressive. Maintaining a balance between assisting and understanding what the unrepresented party requires, while protecting their represented opponent against the problems that can be caused by the unrepresented party’s lack of legal and procedural knowledge, is the key.

Throughout the legal system there are those who represent themselves rather than instruct a lawyer to represent them. The reasons for this can vary. Many do not qualify for Legal Services Commission funding, either financially or because of the nature of their case. Some cannot afford a solicitor. Others believe that they will be better at putting their case across. some distrust lawyers.

In what follows, the term “unrepresented party” encompasses those preparing a case for trial, those conducting their own case at trial and those wishing to enforce a judgment or to appeal.

The disadvantages faced by unrepresented parties stem from their lack of knowledge of the law and court procedure. They are likely to be unfamiliar with the language and specialist vocabulary of legal proceedings, tend to lack objectivity and emotional distance from their case and may not be skilled in advocacy. They are unlikely to be able to undertake cross-examination or to test the evidence of an opponent. They may be confused about the presentation of evidence. They are unlikely to understand the relevance of law and regulations to their own problem, or to know how to challenge a decision that they believe to be wrong. All these factors have an adverse effect on the preparation and the presentation of their case. Equally, however, there are other litigants in person who are very well able to prepare their case and indeed “play the system for all it is worth”. This should be borne in mind.

Subject to the law relating to vexatious litigants, everybody of full age and capacity is entitled to be heard in person by any court or tribunal which is concerned to adjudicate in proceedings in which that person is a party. A party may be represented at trial by a person with rights to conduct litigation under the Courts and Legal Services Act 1990 or may have an assistant or friend (whether lawyer or not) assisting in presenting the case by taking notes, quietly making suggestions or giving advice.

Increasing numbers of people are representing themselves in the civil and family courts. The small claims procedure in the county court is designed specifically to assist the public to pursue claims without recourse to legal representation and has created a huge increase in the number of unrepresented parties. The vast majority of defended civil actions in the County Court are dealt with under this procedure and it is a sign of its success that its jurisdiction has been increased (subject to certain exceptions in personal injury cases) from claims of up to £1,000, to claims of up to £5,000. With the consent of the parties cases of a certain type can encompass substantially greater claims. Legal Services Commission funding has never been available for small claims. Unrepresented parties also appear with increasing frequency in the Court of Appeal in criminal, civil and family cases. Some have represented themselves at first instance. Others, having had lawyers appear for them in the court below, take their own cases on appeal, often through a withdrawal of Legal Services Commission funding after the first instance hearing.

Those who are involved in legal proceedings without legal representation may face a daunting range of problems of both knowledge and understanding.

English may not be the first language of the unrepresented party and he or she may have particular difficulties with written English. Any papers received from the court or from the other side may need to be translated. The court may need to adjourn in order to ensure that a mutually acceptable translator can attend the proceedings to explain to the unrepresented party in his or her own language what is taking place, and to assist in the translation of evidence and submissions.

Unrepresented parties come from a variety of social and educational backgrounds. Some may have difficulty with reading, writing and spelling. Judges should at all times be sensitive to literacy problems and be prepared where possible to offer short adjournments to allow a litigant more time to read or to ask anyone accompanying the litigant to help them to read and understand documents. Some unrepresented parties may try the patience of a judge by their scant knowledge of law and procedure. A judge must exercise and be seen to exercise considerable patience. He or she should not interrupt, engage in dialogue, indicate a preliminary view or cut short an argument in the same way that they might with a qualified lawyer.

Unrepresented parties often believe that because they are aggrieved in some way they automatically have a good case. Many cannot conceive of the possibility that they may not be believed or that justice may not be on their side. When explaining that there is no case, a judge must bear in mind that this will come as a great disappointment to a litigant who has waited for the day in court for a long time.

Some unrepresented parties are unaware of the explanatory leaflets available at the court, or of the lists of advice agencies and Citizens Advice Bureaux able to offer assistance with case preparation.

Many unrepresented parties believe that the court staff are there to give legal advice. Under the Courts Charter court staff can only give information on how a case may be pursued; they cannot give legal advice under any circumstances.

Unrepresented parties in civil cases may not choose the best cause of action or defence. For example, they may not know that if a cheque is returned marked “refer to drawer” it is easier to sue on the cheque than on the original invoice. Many unrepresented parties do not know about limitation periods. Amendments to the statement of case are often necessary.

Many parties fail to file their own witness statements in advance of trial and have difficulty in understanding that such a failure means that they may not be able to give evidence at trial. The individual’s level of knowledge should be taken into account in civil cases when deciding whether to allow an amendment of statement of case or evidence from a witness whose statement has not been filed in advance. A flexible approach ought to be adopted where possible, even if this involves an adjournment.
Some of the problems which arise out of inadequate preparation in advance of civil trials are addressed in the Protocols of the Civil Procedure Rules. The Court Service has produced a new series of leaflets for unrepresented parties in the light of the Rules.

Unrepresented parties sometimes fail to understand their obligations to comply with pre-hearing directions, and in particular directions imposing time deadlines and “unless orders”. Many fail to read court orders or to understand their effect. It is good practice to try to ensure that an unrepresented party leaves a directions hearing appreciating exactly what is required of him or her. A judge should always be ready to explain fully the precise meaning of any particular direction or court order.
Sometimes unrepresented parties believe that if the other side has failed to comply with directions given by the court, that in itself is evidence in support of their own case, or that the opponent should be prevented from defending or proceeding further. They often feel upset at what they regard as an over-tolerant attitude by the courts to delay by solicitors.

Experience shows that unrepresented parties tend not to make sufficient use of documentary or photographic evidence in their cases or fail to appreciate the need for maps and plans of any location relevant to the case. Judges have the power to order a preliminary hearing for a case allocated to any of the three tracks. Preliminary hearings are an opportunity for suggestions from the Bench that documentary and photographic evidence and, if appropriate, maps and plans will be of assistance at trial and will help facilitate the smooth progress of the hearing.

The duty to disclose documents is frequently neglected by unrepresented parties. Some unrepresented parties will have little or no appreciation that they should adopt a “cards on the table” approach. Consequently there can be delay, either because of the need to adjourn or because the judge or the other side requires time at the hearing to read recently disclosed documents. When a pre-trial hearing takes place, a short clear explanation of the duty of disclosure and the test as to whether or not a document needs to be disclosed helps both parties and the court in terms of time saved.

Many unrepresented parties do not have access to office facilities and have difficulties in photocopying documents, preparing bundles and typing witness statements. They have little concept of the need for documents to be in chronological order and paginated. Putting the case back is often the sensible course for a judge to take, in the event of litigants coming to court with their bundles in other than proper order.

Most unrepresented parties do not have access to legal textbooks or libraries where such textbooks are available and may not be able to down-load information from a legal website. A judge should never close his or her mind to letting an individual, accompanied by a member of the court staff, have access to the court library or to a particular book.
Many unrepresented parties do not understand the purpose or role of case law and authorities. They are frequently very confused and troubled by the fact that the judge or tribunal appears to be referring to someone else’s case. A brief explanation by the judge of the doctrine of precedent will enable an unrepresented party to appreciate what is going on and why. A represented party’s lawyer should be told to produce any authorities to be relied on at the outset. An unrepresented party must be given proper opportunity to read such authorities and make submissions in relation to them.

Many unrepresented parties do not appreciate the requirement to prove what they say by witness evidence and accordingly do not approach witnesses in advance or ask them to come to court. Judges are often told “All you have to do is to ring Mr X and he will confirm what I am saying.’ When told that that is not possible, unrepresented parties often become aggrieved and fail to understand that it is for them to prove their case. The need for expert evidence, even in simple cases, is also frequently misunderstood. It must also be remembered that no party can call an expert witness unless permission has been given by the court on allocation.

Where unrepresented parties have not arranged for a witness of fact or an expert witness to come to court, a judge will have a difficult decision to make if confronted with an application to adjourn. The judge should not lose sight of the fact that unrepresented parties may genuinely not have realised just how important the attendance of such witnesses is. In cases where applications to adjourn are refused, clear explanations for the refusal should be given.

Many unrepresented parties do not appreciate the need to obtain an adjournment order if a hearing date presents them with difficulties. It is a common misconception that it is sufficient to write to the court without consulting the other side, merely asking for the case to be put off to another date, or that no more than a day’s notice of such a request is required. On the other hand, unrepresented parties may find it difficult to understand why cases need to be adjourned if they over-run because of the way in which they or others have presented their cases, or why their cases have not started at the time at which they were listed.

At the plea stage, where an unrepresented defendant pleads guilty, a judge should take great care to ensure that the defendant understands the elements of the offence with which he or she is charged, especially if there is on the face of it potential evidence suggesting that the defendant may have a defence to the charge.

Equal Treatment – Some Dos and Don’ts for Judges

ascertain how parties wish to be addressed
• make a point of obtaining, well in advance if possible, precise details of any disability or medical problem from which a person who is appearing before you suffers
• allow more time for special arrangements, breaks etc. to accommodate special needs at the trial
• give particular thought to the difficulties facing disabled people who attend court – prior planning will enable their various needs to be accommodated as far as possible. • try to put yourself in their position – the stress of attending court should not be made worse unnecessarily, through a failure to anticipate foreseeable problems.
• bear in mind the problems facing unrepresented parties.
• admit a child’s evidence, unless the child is incapable of giving intelligible testimony.
• ensure that appropriate measures are taken to protect vulnerable witnesses, for instance children, those with mental or physical disabilities or those who are afraid or distressed.
• be understanding of people’s difficulties and needs.

underestimate the stress and worry faced by those appearing in court, particularly when the ordeal is compounded by an additional problem such as disability or having to appear without professional representation.
• overlook the use – unconscious or otherwise – of gender-based, racist or ‘homophobic’ stereotyping as an evidential short-cut.
• allow advocates to attempt over rigorous cross-examination of children or other vulnerable witnesses.
• use words that imply an evaluation of the sexes, however subtle – for instance, ‘man and wife’, ‘girl’ (unless speaking of a child), ‘businessmen’.
• use terms such as ‘mental handicap’, ‘the disabled’ – use instead ‘learning disability’, ‘people with disabilities’.
• allow anyone to be put in a position where they face hostility or ridicule.

Witnesses and witness statements [top]

You will need to consider at an early point which witnesses to call. Sometimes, you will be the only witness you need or wish to call. A court may be prepared to take hearsay evidence into account, but will tend to treat it as less reliable than first-hand evidence.
Having decided which issues are relevant to your case (including the redress sought), you will need to consider calling anyone who can give significant evidence about any aspect of the case which cannot be given by a person who is already going to give evidence. For example, if you have suffered ill health because of that discrimination, there may be a need to call an expert witness.

It is sensible to interview witnesses at an early stage, to take statements from them, and to ask them to sign and date those statements to confirm that the statements are correct and accurate in all respects.

In taking a statement, it is highly desirable to avoid putting words into the witness's mouth. Any perceived short-term advantage to your case likely to be outweighed by the damage done if, when giving evidence at the court hearing, the witness says something rather different.

Sometimes, possible witnesses are very reluctant to co-operate. For example, they may not be keen to give evidence against a work colleague. Alternatively, they may fear being victimised for giving evidence against their employer (even though such victimisation is unlawful). In other cases, a witness is willing to give evidence, but does not wish to be seen to be so doing voluntarily – a typical example might be a sexual harassment or victimisation claim.

The court has the power to order a person to attend a hearing as a witness. It may make such an order out of its own volition or upon request from you as party to the case. Before granting an application, the court may require whoever makes the request to notify every other party of the application. Before exercising its discretion to grant a witness order, the court will need to be satisfied, first, that the witness can potentially give evidence relevant to the issues in dispute. Secondly, the court will need to be satisfied that issuing a witness order is actually necessary – so you should invite the witness to attend before applying to the courtl for an order.

It is sensible to think very carefully indeed before seeking to compel a reluctant, or possibly even hostile, witness to give evidence on your behalf. There is no "property" in a witness – in other words, the other side may be able to interview your witness and obtain helpful information which could possibly undermine your whole strategy in putting your case to the court. Even where a witness has signed a statement, what may actually be said under cross examination before the court is, all too often, highly unpredictable.

Thus, although you need to call relevant witnesses, a good rule of thumb is to call as few witnesses as are necessary in order to put your case effectively.

LIPS - tips [top]

Dress For Court
Coordinate your court attire with the case you are making.
If you are a working LIP, appear in conservative business attire. The judge does not have many clues as to your real personality. Your clothes send a signal.
If you are a stay-at-home LIP, appear in neat, conservative, respectful attire. If at all possible, do not wear jeans or sweatshirts. Women should avoid clothing that is revealing in any way.
Prepare Your Arguments
Some lawyers recommend memorizing the key points you want to mention and look for a way to work those points into any response the judge asks for from you.
Also be aware of anything in your life that could help your argument.
Gather Your Documentation
Be prepared with documents to back up your claims e.g. such as in children custody matters:
• Any written communications between the child's teachers and you.
• Doctors' notes showing that you were the parent who accompanied the child to the doctors' office.
• Your own schedules from past months, showing the time you were spending with the child.
• Checks you wrote for children's activities or at the doctors' office.
• A statement from your employer, if you can comfortably obtain one, explaining the steps you have taken at work to assure that you will have adequate time to care for your children.
• If different school districts are involved, bring statistics about your school demonstrating its best qualities. These may relate to number of extra-curricular activities, performance of the sports teams, or admissions to colleges.

Here are some tips on how to conduct yourself in the courtroom.

Don't get flustered. Stay calm, no matter what your spouse or the person you are claiming against claims, or no matter what the other lawyer says to you.
• Don't volunteer information. If you are asked questions, answer them as honestly and simply as possible. Things you say could be twisted around in a way that hurts you.
• Be respectful to the judge. Address the judge as "your honour," wait for the judge to finish speaking, and speak calmly and respectfully. Use clean language.
• Don't interrupt anyone. If your spouse, or the person you are claiming against, or his or her lawyer is lying, you will have an opportunity to speak. Be patient.


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