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Litigants in person and the value of representation

Gossage

Over the past year I have noticed a significant increase in the number of people representing themselves in complex civil litigation proceedings.

While having to deal with litigants in person is nothing new, the majority of unrepresented parties I encountered in the past typically involved small claims (with the odd exception). Small claims are monetary claims worth less than £10,000 and the successful party is usually only able to recover limited fixed legal costs. For obvious reasons personal representation is popular in these types of cases.

However I am now seeing an increasing trend in the number of litigants in person involved in cases above the small claims limit.

These cases are typically complex both in terms of value/subject matter and the steps required to bring the cases to a final hearing.

Given this, reasonable legal costs are typically recoverable by the successful party; albeit the parties must bear their own legal costs until an award is made by the court.

Firstly, it must be noted that the only choice available to many litigants will be to represent themselves. Nowadays public funding in a civil context is rarely available and in the absence of public funding not everyone has the means to afford representation. The purpose of this piece is not to critique those who find themselves in that position. Our firm has opposed many of the measures taken by recent governments which restrict access to justice

Notwithstanding the above, it is clear that a number of litigants make a positive choice to represent themselves. You can see how litigants may perceive there to be potential advantages in personal representation. Not only do you have complete control of your case but you are also not incurring significant costs which you may not recover.

However, where this positive choice is made, litigants must bear in mind it is with significant risk.

While judges are typically lenient when dealing with litigants in person, this only goes so far. Recently I have seen a number of unrepresented parties come unstuck.

I have seen examples of claims being issued online in the hope that the Defendant will not respond and judgment can be obtained in default. Upon receipt of a response Claimants can find themselves in a position where they have a fully contested claim at their local court and they have not sent a compliant letter before action and/or their claim form has not been drafted properly. Obtaining representation at this point may allow you to rectify any errors or omissions but this can be costly.

I have also encountered instances where court deadlines have been missed, documents have not been filed or served correctly and conduct at hearings has been poor. This has led to adverse costs orders being made and statements of case being struck out.

It must also be considered that the other party’s legal costs will likely be increased when dealing with a litigant in person.

For example, I recently represented a Defendant in a case where the Claimant was a litigant in person. I had to budget extra costs for preparing the court bundles which is typically the responsibility of the Claimant. It may not be of concern to litigants in person that the other party’s legal costs are higher, but it could be very much their concern if they are ordered by the court to pay those legal costs at the end of the case. This would seemingly contradict the very reason a litigant may have chosen personal representation; to save on costs.

The purpose of this piece is not to scare people into instructing a solicitor.

It is a matter of personal choice based on a number of factors. There can also be no guarantee that representation will result in a plain sailing success. Each case is dependent on its own facts and even with representatives instructed there are often hurdles to navigate during proceedings.

However, instructing an experienced representative who is familiar with the procedure and is used to dealing with complex legal arguments can only benefit the prospects of your case. I would urge you to consider this should you ever become involved in litigation or when considering your local MP’s stance on access to justice.

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