What is a Litigant in Person?
A Litigant In Person (or LIP) is someone who carries out their own litigation by either bringing or defending a claim themselves, rather than using a solicitor. They may do everything themselves, or they may draw on resources from (for example) a barrister who is authorised to accept Direct Public Access (DPA) instructions. A DPA barrister can assist with drafting claim or defence documents, providing advice and representing a LIP in court.
What advice can you give a Litigant in Person?
As a direct access barrister, I see some very good case management by Litigants in Person and some absolute disasters. What follows is not legal advice, it is comment. Use it as a springboard to either find legal advice or find further information as to what you should do. With that caveat, here are my top tips to help you manage your own case:
- If someone issues a claim against you, you must do what it says in the Response Pack that comes with it. If you don’t acknowledge service of the claim and (if also told to) provide a defence to that claim within the time stated, you lose the right to do so. Judgment may well be entered against you. In other words, you lose. So act.
- If you are issuing a claim against someone else, Google “Pre-Action Protocol” for the type of claim. Do what it says.
- If you are thinking of suing someone about a boundary dispute or a right of way to do with your home, think twice. There are better ways (see below). In a recent boundary dispute (about an 11-inch-wide strip of land) I described, in court, the costs of such cases as being, “eye-wateringly disproportionate”. The judge corrected me (and not because of my poor use of English). He said, “I would say life-altering Mr Fox…”. As you are having that second think, remember those words. Straight from the horse’s mouth.
- Ask yourself at the outset, “am I good at admin? Can I draft a document using good English, having found examples of similar documents online? Am I able to minimise emotion and stick to the issues in the case? If the answer is “Not sure”, to any of these you may need help from a professional, or even from a friend or family member who has those attributes.
- Spend money up front. It is tempting to think you can muddle along to save costs and then throw in an expensive barrister at trial to win the day. Days are not won in that way. At trial a barrister can only play the hand that has been already dealt (albeit they may do that very well). A better way if money is tight, might be to ask a professional if your claim or your defence has any merit or prospects of success. A better way might be to ask for assistance in drafting your particulars of claim or your defence in a way that covers all possible causes of action. A properly pleaded case has the best chance of success. Even if that means you have to represent yourself and have some difficulty in framing questions when examining a witness, the court can see your causes of action, the law that applies and the remedies you seek. The court has to satisfy itself about the evidence before making a judgment, even if you make a royal mess of it.
- Getting it wrong because you are not a lawyer is no excuse. The Supreme Court has said that being a Litigant in Person makes no difference. Yes, the rules are complicated and complying with orders can seem confusing at times, but you are responsible for looking things up, asking questions, finding what advice you can.
- Don’t write to the judge or the court asking questions or trying to explain your case. That is not how it works. You might as well write to Father Christmas and wait by the chimney. You file, with the court, case papers and any other documents the court has ordered you to send in. If you want to get the court to do something you usually make an application (on a form) for which there is a fee. That will generate (usually) a hearing about that application to decide it with the other party invited to attend.
- At a hearing, opposing Counsel is not your enemy. Yes, of course they are representing the party you are against. They have to do their best for that party. But they are in their place of work and are doing their job, a short discussion before court about your position (and theirs) can help everything run smoothly. It is not an American courtroom drama. No one shouts, “I want the truth!”. No one ambushes you by passing a folded note to counsel from the nervous witness that has just appeared at the door of the court with everyone present wondering who it is.
- When an order says you “must” do something, do it or there may be severe consequences. Severe as in, you cannot present any evidence in court. Severe as in, your claim/defence is struck out.
- My last litigation tip (I could go on) is, embrace the idea of alternatives. In law, it doesn’t do you any harm to set out alternatives. It might in hard-nosed commercial bargaining, but not at court. I quite often say in court or in documents, something like, “my client’s case is breach of contract. But if I am wrong about there being a contract or that it was breached, the other party had a common law duty of care to ensure my client…”. In law there can be more than one way to skin a contract. In this example contract law and common law.
How do I avoid expensive litigation?
Finally, a golden nugget. You can take this as advice because it is advice I give to everyone. Even the postman, who has in no way sought my wisdom on the matter. Want to avoid expensive litigation? Mediate.
Consider this:
Scenario 1: Issue a claim. Wait up to 2 years (occasionally more) to get resolution. Spend thousands or probably tens of thousands of pounds. Leave the answer to a total stranger who can only offer solutions that the law provides for. You will probably have to give oral evidence and be cross-examined in court. You might lose. You might win but not like the decision. No one can tell you for certain.
Scenario 2: Organise mediation. Wait a few weeks. Spend between a few hundred and a couple of thousand pounds or so, depending on the type and nature of the mediation. You provide the outcome, based on anything you and the other party choose to agree or compromise on. You don’t even have to see or speak to the other side if you don’t want to. No one wins, no one loses.
Like I said, gold. I’m not the only one who thinks so – it is likely to become compulsory in the near future.
If you are thinking of bringing a claim or need to defend yourself against one, get in touch for some advice. Becket Chambers can also help if you need representation in an existing court matter and don’t have a solicitor running your case. Becket (most importantly) have a fleet of highly experienced mediators with a great track-record of helping resolve disputes. Please contact clerks@becket-chambers.co.uk for more information.
