Litigants in person are defined as an unrepresented party (either an individual, company or organisation) or a self-represented party. This means they do not use the services of a solicitor or barrister. (The equivalent in Scotland is a party litigant and in the United States it is pro se legal representation.)
Recent developments in litigation have led to an increasing number of litigants in person appearing at court. These developments include, but are not limited to, cuts to legal aid and an increase in the damages that define a small claim.
This development has added an extra burden to a lawyer’s (and therefore their client’s) workload through the effort required to deal with a litigant in person who, of course, does not have professional representation and is largely ignorant of the law and legal procedure. This burden is beginning to compromise the duties lawyers have to their own clients. The question now is how far should a lawyer go to assist a litigant in person?
A useful analogy was provided in an article by John Hyde in the Law Society Gazette entitled, “It’s not a solicitor’s job to do their opponent’s homework”* which poses the situation where Serena Williams, a superior tennis player, is playing an unknown tennis player who does not possess her skill or talent, yet naturally, the umpire does not proceed to give the lesser-talented player helpful pointers nor is s/he expecting Serena to do so either.
As lawyers, we have extra duties to the Court and the Law itself. We also have duties to our clients and their goal of a successful outcome. Dealing with a litigant in person can be a frustrating and time-consuming experience. As lawyers we have a responsibility to manage a litigant in person fairly, whilst also being mindful of our client’s best interests. Ultimately, a lawyer’s duty to the Court must prevail.
It is vital that all parties know not to take unfair advantage of the situation. From a lawyer’s perspective this would mean rehearsing a strategy with their client that does not bully, mislead or make threats. A litigant in person must ensure they are not making claims or demands that cannot properly be claimed or demanded.
Taking all of the above into consideration, lawyers must always remind themselves and their clients that there is no obligation to assist a litigant in person but there is a duty to:
- Explain to the litigant in person what needs to be done (but not advise);
- Explanations should be made in a clear and concise manner (i.e. no legal jargon);
- Refer them to the Civil Procedure Rules (for which we are governed); and,
- Always suggest that the litigant in person takes independent legal advice – this basic reminder in all correspondence and exchanges is necessary to protect lawyers from future claims in negligence.
While the courts are not unsympathetic to the difficulties faced by litigants in person, recent case law supports that litigants in person are not entitled to special privileges.
If you require assistance with a case as either a litigant in person, or as a party against one, please do not hesitate to contact us.
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