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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.
Housing
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.
Recommendations
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
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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
Dos
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.
Don'ts
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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