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8th January 2016

DIY Litigation: What could possibly go wrong?


8th January 2016

DIY Litigation: What could possibly go wrong?

Man at workPartly as a result of changes to the court fee structure over 2015 we have witnessed an increasing trend for people to represent themselves in court as a “litigant in person”. Saving on lawyers’ fees and having complete control of your case are obvious attractions, but what are the risks?

From the solicitor’s point of you, you might expect me to go on to set out 10 points on the problems of representing yourself in court; after all don’t all solicitors want you to instruct them instead? Well, yes of course we want your business but we also recognise there is more than one route to achieving justice and that solicitors can be involved as much or as little as fits the individual case or issue. I therefore felt it would be more useful if instead I set out some useful points for all litigants to bear in mind when embarking on a civil action in the County Court.

Learn the Procedure

Every claim for recovery of an asset or a sum of money follows a process that is governed by the Civil Procedure Rules, often referred to as the “CPR”. You will probably not have either the time or the inclination to get to grips with all of the rules contained in a book that is bigger than most people’s door stops, but you should at least look to gain an overview of what is involved in preparing a case for trial. Become familiar with the following procedures and terms:

  1. Claim form and Particulars;
  2. Defence, Set Off and Counterclaim;
  3. Case Management:
    1. Expert evidence;
    2. Small/Fast/Multi track;
    3. Disclosure (what documents, including emails, can you access that may be potentially relevant to the case);
    4. Witness statements;
  4. Prep for Trial:
    1. Preparing a bundle for the Judge and Opponent;
    2. Skeleton Argument and Statement of Costs;
  5. Format for the day of Trial.

When you are preparing documents that are likely to be referred to in Court put your points in chronological, numbered order, check for any applicable guide published online and be precise; don’t stray too far from the facts. Include all your key arguments and facts in your Particulars of Claim or your Defence, saving the factual details of what you or anyone else witnessed for your statements to follow. Note that if you do not defend against a point made in the Claim then you are at risk of the Court finding that you have accepted it as true.

Be aware of the Penalties

If your claim is listed in the fast or multi track and you write to the Court to inform them that you wish to withdraw your claim, then the general rule is that you must pay the other party’s costs that they have incurred to date. Similarly, the default position is that the losing party pays the other party’s costs and this is not just after the Judge has made a decision after hearing all the evidence. Once a case has started, if you fail to serve a document, often the Acknowledgment of Service or the Defence, then your opponent can apply to the Court for what is called a Default Judgment against you, essentially resulting in them winning the case all because you ignored or overlooked a procedural deadline.

A Bit of Context

Finally, let me share with you where my inspiration for this blogpost came from. I was recently pitted against a litigant in person who halfway through a hearing, openly admitted that he was completely out of his depth. Whilst he had the financial resources to obtain legal advice, he had decided to represent himself. It was clear that he did not fully understand the risks he was taking by not undertaking research and/or seeking legal advice at any stage prior to the hearing. As the case had been ongoing for some months, his request for an adjournment to seek legal advice was refused. The end result: what started out as his claim for around £5,000 resulted in him having to pay circa £30,000 as well as his opponent’s legal fees. The moral of the story? You need to understand what you are doing before you potentially bite off more than you can chew.

The legal system is not designed for individuals to act in person on claims that are initially complex and over the value of say £10,000. If you do decide to go it alone without seeking advice you must appreciate the risks involved and recognise before it is too late when you do really need to seek legal advice. If in doubt I would strongly suggest that you at least book a fixed cost appointment with a legal adviser who will be able to point you in the right direction. Most solicitors who specialise in litigation, and certainly our team here at Paris Smith, will be more than happy to work with you ‘behind the scenes’ and as your budget allows, without insisting that we should take over the conduct of your case on a day to day basis.

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