This article only applies to Civil Litigation, and Civil Proceedings. Rules are slightly different in Criminal Proceedings.

A Litigant in Person is defined at Section 22 of the Supreme Court Costs Office Guide 2006, as:

‘A person who…during any stage of proceedings in Court, he/she is not represented by a Solicitor or firm of Solicitors. A Litigant in person may include a Company or other Corporation, a Barrister, a Solicitor, a Solicitor’s employee or other authorised litigator who is acting for himself’.

Before you become a Litigant in Person, ask yourself these questions:

1.    Will you save yourself time not to have legal representation?

I have encountered numerous Litigants in Person in my career. Some are emotionally intelligent, and are able to keep objective what they wish to achieve. Most are not objective. How can they really be? The case involves them. It is time-consuming. It is overwhelming to understand the procedures of Court, and the law. It can become obsessive and take up your entire life.

So the short answer in respect of time, is ‘No’. You will not save yourself time when acting as a Litigant in Person. You will however experience deep frustration in the way that Courts work, and the other side with Legal representation will deal with you.

2.  Will you save yourself money in terms of the expense of having no legal representation?

It is rather an open-ended question. Do you want to become a Litigant in Person, because you think that when recovering costs, you will recoup an hourly rate similar to that of a lawyer?

First ask yourself, will you win? If you win, and that is a big ‘IF’, and the Court awards you costs (They do not always do so, if it is a small claim £5,000 or less, in value, or you behaved unreasonably, or you could have mediated and did not do so, or you ignored an offer to settle, which the Court felt you should have accepted, and several other reasons), what can you recover in terms of costs?

Costs of a Litigant in Person are set out at Part 48.6 of the Civil Procedure Rules 1998.

The current hourly rate prescribed by statutory instrument in the absence of proof of actual financial loss to the Litigant in Person is £9.25 per hour….Yes. £9.25 per hour. A typical Trainee Solicitor at a London rate is charged out in the region of £120 per hour. Shocking, some may say!

There is also a cap applied to that rate which is set out under the Litigants in Person (Costs and Expenses) Act 1975.

In principle, a Litigant in Person is entitled to his time at 2/3rds of the notional solicitor rate, given the lower of the 2 items. Even then, this only applies to time spent on matters within his own professional expertise and requiring the attention of an expert.

Out of pocket expenses such as travel costs, are recoverable.

So the short answer is that in terms of the hundreds of hours you are likely to spend on your case, or defending a case against you, you are unlikely to recover even a fraction of your time spent.

3.    What do you know of the law and legal procedure?

Well, the Judiciary has extensive guidelines as to how they will literally bend over backwards to accommodate and guide you through the procedures. You will likely be given the benefit of the doubt if you get the procedure wrong, or are late in dealing with matters, or do not comply with directions of the Court…up to a point.

You are unlikely to be rushed when advocating on your own. The Courts will do their best to be patient with you.

Equally, the Courts will expect both Barristers and Solicitors to do what they reasonably can to ensure that they have a fair opportunity to prepare and put their case.

There is mention of that expectation in Part M 2A-127 of the Admiralty and Commercial Court Guide.

This does not however, mean, that certain solicitors would not try and take advantage of a Litigant in Person. Please remember that whilst there is an expectation to assist with procedure in order that a fair hearing ensues, there is no expectation or duty whatsoever for Solicitors or Barristers to provide a Litigant in Person with advice on the law. After all, they do not represent you. They represent the other side.

Even if you wish to proceed as a Litigant in Person, it is sometimes useful to get an opinion from a Barrister through the Direct Access Scheme, or a Solicitor, to provide you with an advice on quantum and merits (i.e. The likely costs, time, and risks of proceeding to Court, and winning, or losing). Darlingtons Solicitors are happy to provide paid advice for consideration of your papers, or indeed, to be in the background advising you upon Civil Procedure and tactical considerations.

4.    Are you a Litigant in Person because you are not able to obtain Public Funding/Legal Aid, or lack funds to seek advice, or have representation?

 There are a number of groups around, specifically LawWorks in Chancery Lane, which consists of many experienced Lawyers who give freely of their time to help you to make decisions.

They will act for free within the scope of what they offer (i.e. on a Pro Bono basis). Brunel Law School Legal Advice Centre is just one of those Law Schools who have embraced giving advice for free. They will meet with you, read your papers, and if there is sufficient information and facts, will provide you with a letter of advice for free.

Failing this, you should get in touch with LawWorks who will, if the circumstances allow, give you free legal advice.

What I have stated above, are just some of the considerations to becoming a Litigant in Person. It is a non-exhaustive list. I therefore highlight with equal importance, which I have not covered: McKenzie friends, Conditional Fee Agreements, No Win, No Fee agreements.

David Rosen is a Solicitor-Advocate, Partner, and head of litigation at Darlingtons Solicitors who are members of LawWorks. He is a member of the London Solicitors’ Litigation Association, and a visiting associate Professor of Law at Brunel University where he runs the Brunel Law School Legal Advice Centre with dedicated and highly intelligent Law Students.

Disciplinary Hearings and Representation

The issue of a disciplinary hearing and who is entitled to attend has become increasingly contentious in recent years.

The law has always provided an employee with a right to attend a disciplinary hearing with a work colleague or a Trade Union representative. It is often the case that when an employee is involved in a disciplinary action they feel uncomfortable taking a work colleague with them or they are unable to find a work colleague to attend. It may also be the case that they are not a member of a Trade Union. In the circumstances, the standard approach was that an employee would have to attend by themselves. They are entitled to request that they have a friend or a lawyer present, but it is unusual that an employer would agree to this and/or that they would be required to do so under the law.

However, following the case of “R (on the application of G) – v – Governors of X School”, there has been a general recognition that employees shall have an entitlement to legal representation at disciplinary hearings in extreme cases. There has however been some confusion as to when that situation will arise and/or when employers are required give to a request by an employee to have a legal representative present.

 The above case has recently reached the Supreme Court which overturned the original decision at the Court of Appeal which stated that a Teaching Assistant accused of sexual misconduct could rely on the right to a fair trial in accordance with Article 6 of the European Convention of Human Rights, and therefore was allowed legal representation during the schools disciplinary hearing. The original decision was based on a number of factors including that had the employee been found guilty at the disciplinary hearing then this would have a significant effect on their ability to work in the chosen field going forward. In this case the Supreme Court held that the decision of the disciplinary procedure would not automatically lead to the employee being barred from working as a Teacher. The court held that it did not necessarily follow that a finding of guilt at the disciplinary hearing would lead to a knock on effect and bar from working by the Independent Safeguarding Authority.

Summary of current position

What can be seen from this case is that there is a clear distinction between situations where a finding of guilt at a disciplinary would prevent the employee from working in their chose field, and situations more common in the public sector whereby an employers disciplinary process feeds into the procedures of a standard body like the Independent Safeguarding Authority but it does not necessarily determine a decision.

In the case of Kulkarnia – v – Milton Keynes Hospital NHS Foundation Trust, the view, made obiter, was that a doctor accused of inappropriately touching a patient would be entitled to legal representation at a disciplinary hearing.

What this means is that employers need to be aware when an employee may be entitled to legal representation. It seems by the most recent judgement that it would only be in extreme cases, nevertheless, advice should be sought as failure to follow a proper process will lead to a potential unfair dismissal claim against the employer.

If circumstances are not extreme and there is no right to legal representation, then employers should consider who is a reasonable choice of companion. An employer can at their discretion allow an employee to bring a companion who is not a colleague or Trade Union representative. If, however, the choice of companion is unreasonable then an employer is entitled to reject this and proceed with a hearing in any event. An unreasonable companion would for example, be an employee who is involved with the disciplinary, has knowledge of the disciplinary, is used as a witness in a disciplinary and/or would be compromised by attending the disciplinary.

Ben Jones is head of employment law at Darlingtons, Solicitors in London. Please get in touch with Ben for further advice on this or any other employment law issue.

Squatting to become a criminal offence in 2012 (but only for residential property)

Finally, something is being done about the absurd legal position on squatters.  Squatting is a bigger problem than many people think and the law is currently ridiculous at the moment. It goes something like this :-

1. Squatters break into your property
2. They may start vandalising it
3. You can only recover possession by a court order
4. Make a mistake in the paperwork (or don’t go out of your way to ensure the poor squatters know about the court proceedings) and you have to start again
5. Spurious defences by squatters often cause adjournments
6. Even with a  court order, squatters often given weeks thereafter  before they leave

It is about time that the above ludicrous situation changes and it appears, from a new Government bill, that squatting will be a criminal offence in 2012. Whether this will deter some squatters is a different issue as they may consider a short spell in prison another way of obtaining free accommodation. The new rules will apparently only apply to residential property not commercial. Why this is the case seems to us to be quite illogical although we suppose the rationale is that if commercial premises are left unoccupied the effect of the squatting is not so bad. Frankly, we don’t really see the difference.

What do you think ?