We have recently become involved to a degree with the excellent work carried out by Brad Meyer and the Help4Lips (Help for litigants in person) charity and project.
An increasing number of businesses and individuals are actively or at least considering representing themselves in civil disputes, either because the matter is a small claim, the costs of using a lawyer are considered prohibitive or unaffordable or with individuals, based on the fact that legal aid is now largely unavailable.
What do you need to know if you are considering representing yourself in a dispute?
Another way of asking the same question is, what are the most common errors or misunderstandings of litigants in person ?
In our experience, the most common error is to believe that civil cases are often ‘won’ or ‘lost’ at the outset because of failing to understand that there are really 3 key aspects to a case, not just 1. (when we say won or lost, rarely does either party outright win or lose and winning and losing can mean settling on terms where you are still out of pocket or even more out of pocket than you were before starting court proceedings).
Many non-lawyers, for understandable reasons, focus immediately on the evidence.
For example, you have a written contract, the other party doesn’t comply with his or her obligations, so case won. It’s not that simple. Or, if the position isn’t clear on paper, you may obsess about finding witnesses and getting them to give you statements.
In reality, the 3 key elements, all of which are vital are :-
- the facts (evidence)
- the law
- the Civil Procedure Rules
Before commencing legal proceedings – check the law
Before starting a case at court, no matter how strong you believe your evidence is, you must check the law thoroughly. The evidence may support your case but the law may not. A cursory check of the law is also dangerous. Taking just the example of contract law, this is highly complex and you may not have the right to cancel a contract and claim all your money back or additional damages just because the other party breached the contract (see our page on remedies for breach of contract).
The Civil Procedure Rules
Understanding the rules is vital if you have started or are considering starting a claim. An entirely understandable error but nonetheless a very dangerous one is to google the Civil Procedure Rules, find out about the Overriding Objective and to believe this means that the very technical other rules don’t apply to you or aren’t that important.
The overriding objective sets out the overall way the court should try and deal with cases – it means that judges will invariably give a self representing party a considerable amount of slack, but it doesn’t mean you can ignore the rules or not find out about them. The Civil Procedure Rules are very detailed and very technical ranging from the way in which documents should be presented in the litigation, through to timetabling but also including a number of tactical procedural aspects such as, for example, applying to strike out a claim or a defence, applying for summary judgment and making tactical offers to settle.
Whilst a Judge may initially be sympathetic if, for example, a statement of case or defence aren’t in the format a lawyer would know they need to be presented in, the court is very unlikely to continue to grant leeway once an initial warning has been given, and, as another example, turning up to court to defend an application by the opponent to strike out your claim and simply arguing it wouldn’t be fair to allow the application because of the overriding objective of fairness would be given short shrift.
I recognise that many litigants in person simply don’t have any money to get legal advice. Help from the Citizens Advice Bureau or other free resources may be available. If you have some resources, perhaps are a small business and don’t want to take on a lawyer to run the whole case for you, you would be well advised to still invest in some advice, behind the scenes on your case, on key aspects of it such as the basis of your claim or defence in law, ensuring that your formal particulars of claim or defence contain the right legal principles and to gain an understanding of the key elements of the Civil procedure rules.
If you are interested in finding out more about how we can assist you without being formally on the court record, please do get in touch.
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