A letter to the Law Society Gazette last week from a family solicitor suggested that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person. Caroline Goorney wrote that:
“The rise of the litigant in person is an inevitable fact of life, but their favourable treatment by the courts is beginning to ring alarm bells. While the judiciary are rightly seeking to ensure a ‘level playing field’, my recent experience is that the represented litigant is now at a distinct disadvantage when appearing opposite a litigant in person.
A procedural hearing that should take no more than 15 minutes can now take twice as long, as the district judge patiently and laboriously explains each and every step to the litigant in person; a case listed for one hour can take two, while the litigant in person wastes time in obfuscation and irrelevancies.
The district judge, fearful of an appeal, is often more lenient and generous to the litigant in person than to the representing solicitor; rules are sidelined and breaches overlooked. And all the while the paying client observes in wonderment as his or her legal adviser is repeatedly told to stop objecting, and their original costs estimate quietly doubles.
I am seriously considering advising some of my clients to attend court in person when faced with a litigant in person, so as to ensure a truly ‘level playing field’.”
There are in essence two points here:
- that the cases take longer by virtue of the twin facts that more needs to be explained to the litigant in person and that the litigant in person will himself take longer to explain his case to the court, and
- that the court is more lenient i.e. gives favourable treatment to litigants in person.
The consequence of this, it is suggested is that the costs of the paying party are inevitably increased.
I understand where Caroline Goorney is coming from. It can be frustrating (both for lawyer and client) to have done everything by the book and to find that a litigant in person can waltz into court, present a mountain of unseen documents to the court and make hitherto unalluded to points and generally dominate the court process.
But I have to say that in general terms my experience is that the courts are pretty flexible with all parties in terms of procedure, whether represented or not, and that particularly since the introduction of the FPR are not minded to run cases with undue reference to technicality. It is in fact often a litigant in person who will wish to complain about a technical breach of the rules where a solicitor has been slightly late for example in serving a statement on him. It cuts both ways.
In my experience the courts are, where appropriate, willing to say “Enough! You will comply with direction X or the consequences will be Y.”, to say that a litigant in person has had quite enough time, quite enough slack to have been expected to have prepared his case. They will even make costs orders against litigants in person where appropriate. And whilst most judges will strain to be polite, to allow a fair hearing, to allow a litigant to expand even his most bonkers points, they will proceed to make a decision based on the respective strengths and weaknesses of the evidence as presented to the court. That is to say that whilst procedurally the litigant in person may be given the benefit of the doubt, the substantive decision will ultimately be unaffected by their status as such.
It does take longer, that is inevitable. And sometimes that will increase the costs. However where a fixed fee is being charged for attendance at a hearing (as it increasingly is) or where the advocate is paid via legal aid, the costs of attendance are likely to be the same (unless of course the hearing runs into a second legal aid “unit”). However, overrun in cases is not limited only to cases where there is a litigant in person. Difficult legal representatives, or even just diligent ones, can raise issues or pursue arguments that take up more time than anticipated. They may do so properly or improperly, sometimes “having a go” at running points that they would have been likely to drop if there had been a sensible word from an advocate on the other side: “Come on. Are you really going to run that? Can you take your clients’ instructions”? It cuts both ways. Where there is likely to be an increase in costs is in correspondence and in bundle preparation, and in all probability a higher number of hearings over the duration of a case.
But the point is this: whilst a represented party may be frustrated, put to greater expense or generally disadvantaged by the involvement of a litigant in person, a litigant in person is rarely going to secure a positive advantage by virtue of being unrepresented. For all the leniency that a court may adopt in its approach to a litigant in person, for all the efforts to level the playing field, a litigant in person is still likely to be flailing around making the best of a bad job, having palpitations in the toilet cubicles, bumbling on about irrelevances and failing to put forward their killer points. I don’t call that a litigation advantage.
Whether or not electing to act as a litigant in person is a useful strategy for those who can afford it is a difficult question. It is in my view rather speculative and risky to say that one might get a bit more of a sympathetic approach from the court if the lawyer is dispensed with. It may well backfire in any event if it is obvious to the court that it is a mere device. It may be a necessary evil for a litigant who has a limited fund and who may need to pick his battles – I often advise clients that it may be better to save their funds for a particular hearing if they cannot afford representation throughout. But that is not the same as saying that there is an advantage in going it alone. The lawyer at court is not just a cipher, who can translate a client’s case into palatable and clever phrases for the judge to sign up to. The lawyer at court is an adviser, a negotiator, a buffer between hostile parties. Their task may be harder where the other side is a litigant in person, but it is a valuable service if it can be afforded.