Over the last few years, we have seen the rise of the Litigant-in-person (“LIP”). To lawyers, this is only even more concerning than the rise of the robots. However, it is unlikely that LIPs will take over the world so perhaps I should be focussing on the robots after all!
LIPs are on the increase because the Civil Justice System (“CJS”) has become more accessible and user-friendly over the years which means that LIPs can run their own cases and save on lawyers’ fees. Saving on lawyers’ fees is particularly important for some people due to the continued rise of Court fees.
So, what’s the problem?
Put simply, the problem with dealing with LIPs is that the majority of them do not know what they are doing. This can result in costs increasing for legal represented parties due to excessive correspondence and seemingly endless queries. Further, the CJS places an onus on legal representatives, instructed by other parties, to help LIPs. I instructed a barrister to attend a hearing recently with a client and the client called me afterwards aghast that their barrister had spent a huge amount of time prior to the hearing explaining the situation to the LIP on the other side. I had to explain to the client that this was, in fact, the barrister’s duty but from the client’s point of view they had paid a fee to the barrister so why should the LIP get the benefit of the barrister’s time?
Anyone who deals with the CJS on a regular basis will most likely have had to face difficult LIP on the other side at some point. These LIPs will make many phone calls, send many emails, demand that they are in right and they simply will not believe you when you point out to them that the relevant law in the matter dictates that they will lose. This is the problem with not getting legal advice. The LIP misses out on expert and impartial advice which could save them a huge amount of time, effort and possibly help them avoid an adverse costs order.
Of course, there are LIPs who deliberately misbehave and play the system to avoid justice being done. Not only will they badger the other side and the other side’s lawyer but they will also do the same to the Court. Whilst there is little a lawyer can do to get rid of them (ignoring the correspondence does not work, I have tried it!) the Courts have started to take a stand.
Agarwala v Agarwala (2016) EWCA Civ 1252, 8 December 2016, unrep.
I will not go into the facts of this case but in the postscript to the Judgment, King LJ noted that the Parties had been prohibited from making further applications without first obtaining permission of the Court. This barrier had been put in place because of the problem I described above; repeated applications and email communications had been sent to the Court to such extent that the effective management of the proceedings had been severely compromised. This shows the usefulness of the Court’s case management powers in attempting to rein in the worst excesses of LIPs.
Does this help me?
Well, yes it does. If you have a LIP on the other side of one of your disputes, even if you are a (well-behaved) LIP yourself, you can point the Judge in your case to the above and ask that they put constraints on the conduct of the other side. It could really help to reduce the time and cost of dealing with a matter. This can only be a good thing.