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Litigant in Person v Represented Party

View profile for Nina Lake
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Legal costs, in all areas of law, have been under scrutiny time and time again and tend to be one of the biggest fears which clients have when they initially agree to instruct a solicitor.

In her speech to Resolution’s National Conference in Manchester, Jo Edwards, the new Chair, has outlined the challenges currently facing family lawyers in respect of the recent legal aid cuts and the devastating impact that this has had. The recent cuts to public funding, combined with heightened fears of legal costs and ‘getting screwed over’ by a lawyer, it is no wonder that more people than ever opt to go it alone in the world of litigation. This is particularly so in the family courts where it is becoming increasingly apparent that there has been a stark rise in the number of Litigants in Person (LIP’s).

This is all fair and well, I completely agree that everyone has the right to obtain legal advice if they so wish and likewise should also have the right to act on their own behalf if they prefer, particularly when it comes to such matters as their family and personal assets which are, in most cases, of paramount importance to them. However, facing a LIP on the other side of a case can have a profound impact on the represented parties’ costs and the proceedings as a whole.

When the represented party’s costs escalate as a result of the conduct of the LIP’s, can this really be seen as fair?

In many such cases correct procedures are not followed, unreasonable arguments are put forward and lawyers and the Court try desperately not to appear to come across as too bullish and harsh towards LIP’s. It is therefore no wonder that additional work often has to be carried out by the legal representative when there is a LIP on the other side.

The right of LIP’s to manage their case themselves is a valuable one but how can this be managed so that the represented party is not penalised?

Support is in existence to assist LIP’s. McKenzie friends (someone who attends court with a LIP to provide support and assistance but is not allowed to address the court) cannot be undervalued in such cases and often provide much support for those going through the court system alone. In addition, various free legal clinics and support groups have been cropping up all over the place which provide LIP’s with free legal advice, often given by qualified lawyers. Despite these being readily available to LIP’s, problems still often arise and it is apparent that more needs to be done.

A possible suggestion going forward could be for some kind of code of conduct to exist which LIP’s are required to read and sign up to before they are allowed to litigate themselves. This could provide guidance as to how the Court system works and general rules about litigation conduct. This could result in continuous breaches being punishable by way of warnings from the Judge or in cases of more serious breaches, by way of financial penalties. Whatever the sanctions might be it would remain of utmost importance that this did not in any way hinder a LIP’s fundamental right to access the judicial system.

Alternatively, it could be that a central ‘pot’ is set up, in which the LIP puts a sum of money to assist the represented party with their legal fees, particularly if the represented party is the ‘weaker’ one financially.

There are pros and cons to any suggested move forward, but what I think is important is for solicitors and LIP’s to work together going forward and develop a mutual understanding and respect for one another that will ultimately benefit any case. Workshops or group meetings could assist in discussion forums taking place where legal representatives and LIP’s can share their thoughts about how they can both manage cases more effectively going forwards. There is of course no doubt that some LIP’s find the legal representatives they are up against just as hard work.

It is a difficult issue and something that certainly needs to be addressed going forwards. I hope that as time goes on, more legal representatives and LIP’s work better together in order to progress a case in family proceedings without the represented party being penalised in any way.