Litigants In Person: New Duties Imposed On Solicitors Acting Against Unrepresented Parties
Posted on 30th March 2020
Something seen coming for a while now, a duty upon Solicitors instructed by a party in Litigation to assist their unrepresented opponent, is to be written into the Civil Procedure Rules. A step to assist the Court and to, presumably, minimise the time spent dealing with failures to comply with Directions and Unless Orders will make it harder for solicitors to do their best by their client and also, take up their time in, effectively, assisting their client’s opponent.
What are a Solicitor’s duties?
A Solicitor has a number of duties which, in Order are Court, Client, Themselves and/or their Practice and finally, their Opponent. These duties are, generally, absolutely compatible but do occasionally conflict. However, the clear order of the duties gives no room for doubt. MG Legal, your solicitors in Lancaster, have a proven track record of balancing these duties properly and we regularly ensure our clients leave the Court happy, or ideally never set foot in the Court because we have convinced the opposition to settle.
For example, if a Solicitor believes their client is advancing a meritless claim, they have a duty to the Court not to assist in the use of the Court’s time for a claim that will fail and so it is their duty to advise their client to discontinue the claim.
It is a requirement, generally, that an opponent is copied into any communication to the Court, so that the opponent may file a reply, raise an objection or make a Counter-Application. This is part of the ebb and flow of Litigation and one that, generally, results in a smooth progress of the case to either settlement or Trial.
Where is the conflict coming in from a Solicitor’s point of view?
The new obligations will make it the duty of a Solicitor whose client is opposed by an unrepresented party to “co-operate in providing an informal record of the proceedings while awaiting the approved transcript.”
In short, the Solicitor, being paid by their client, must provide a free service to their client’s opponent because they have not instructed a solicitor. Any note usually taken for a client contains information and observations that, ordinarily, would be protected by privilege and so it is not simply a case of printing an extra copy.
The Solicitor would need to type up a version of the Hearing or Order for the unrepresented party that contained no remarks for their client’s benefit and which, to some degree, informed their opponent about what they needed to do.
It is one thing copying an opponent into a communication to the Court, but entirely another having to produce a sanitised, comprehensible version of the Hearing to, in effect, advice their client’s opponent how to proceed. Balancing these two duties, one imposed by the Law, the order by Client Care Duties, is an exceedingly fine line.
Solicitors unhappy about this new development
It is fair to say that many Solicitors are unhappy with this development. It creates not only the problem outlined above but, naturally, preparing any document takes time. It is unlikely their client will want to pay for their time in that is, at least borderline, providing assistance to their opponent and there is no mechanism by which the opponent can pay in advance for the time. Ultimately, it appears that the Solicitor must perform this task unpaid and, in all likelihood, with neither side thanking them for it.
MG Legal, your solicitors in Lancaster, will of course comply with this Rules when it comes into force, but rest assured there will be no compromise in the quality of service you receive, nor will be going easy on your opponent just because they don’t have a Solicitor.
Why is this being done?
With the internet being an ever expanding mine of information, it is easier and easier for people to find the answer they want online. Whether it is the answer they need to prove a Claim or Defend one in the Court’s of England and Wales remains very much hit and miss.
What tends to happen, therefore, is that many people believe they have a viable case and instead of seeking advice, choose to act for themselves, as Litigants in Person as it is known. Although there are some highly intelligent people out there, the Court and the Litigation process cannot be learned overnight, especially from the internet. So, the Judiciary are faced with many people who do not know exactly how to conduct Litigation, which results in many a wasted Hearing, adjourned while further time is granted to a Litigant in Person to get something right or to provide the correct Form.
The Ministry of Justice believe this to be the solution, to ask Solicitors to guide their client’s opponent and point them in the right direction, in the hope of reducing the number of Hearings which take place that do not progress the case at all.
Is it fair?
Not really no, one Solicitor likened it to introducing a rule in the Premier League that if your opponent is not as skilled as you, then you have to pass the ball to them. Another sporting example likened it to Serena Williams instructing her opponent on what type of shot she was going to play next.
You’ve taken the time to find and instruct a Solicitor, paid for their time and soon, whilst they won’t outright help your opponent, they take away some of the advantages of paying for your Solicitor. As a Solicitor, in effect, if your client is unrepresented you have one and a half clients.
Can your Solicitor actually help your opponent?
No, they won’t actively help and of course, any ‘assistance’ in the form of notes from Hearings must be entirely impartial, but much of Litigation can be a tactical as well as legal process and so, obtaining that upper hand will be much more difficult.
Is it still worth having a Solicitor?
Absolutely, just because you have a brief explanation of what went on at a Hearing doesn’t mean you know how to go about winning a case. Whilst obtaining that obscure research paper from a Peruvian scholar might seem like the piece of evidence that will ‘crack the case’ for you, it is likely the Court will have no interest in it unless is fulfils certain, very specific criteria. The obscure Case-Law from 1930 that seems like the very same case you’re fighting, great unless it has been superseded in the past 90 years or overruled by some newer Legislation.
Solicitors, like MG Legal, your solicitors in Lancaster, deal with Litigation every day, know where to look for the right advice and evidence and know how to best represent your cause in Court.
If you have need of a Solicitor, we handle most type of matter, both contentious and non-contentious. We aim to accept all Personal Injury cases on a Conditional Fee Agreement (no win, no fee agreement) and most of our other services in Property, Family & Children and Wills & Probate matters can be offered on a fixed fee basis to ensure you have access to our services.
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