FREE CHAPTER from ‘A Practical Guide to Working with Litigants in Person and McKenzie Friends in Family Cases’ by Stuart Barlow

CHAPTER SEVEN – UNDERSTANDING THE DIFFICULTIES

Language

English (or Welsh) may not be the first language of a Litigant in Person, and he/she may have particular difficulties with the written language. Any papers received from the court or from the other party may need to be translated. In some circumstances, an interpreter will be required.


Disability

A Litigants in Person with mental or learning disabilities may have difficulty in presenting their case and giving evidence. Difficulties faced by disabled witnesses are likely to be exacerbated where the individual is representing him or herself.

A Litigant in Person may be a vulnerable adult and require additional support from the court or the lawyer. If a Litigant in Person is vulnerable and their needs have not been recognised, a legal representative should bring this to the court’s attention, as they would for a client. This also applies when the legal representative has doubts about an opponent’s capacity to conduct court proceedings.


Applications, Statements, and Time Limits

Litigants in Person may make basic errors in the preparation of a family case by:-

  1. failing to choose the best course of action or response;

  2. failing to put the important points in their application or statement;

  3. describing their case clearly in non-legal terms, but failing to apply the correct legal label or any legal label at all;

  4. overlooking time limits and not understanding the relevant law and evidence required for an application to extend time;

  5. A Litigant in Person can think that acceptance of his/her application form and processing of the documents means that the correct procedure has been adopted. The litigant can therefore be taken by surprise when, at a later stage, he/she has to deal with this issue;

  6. where directions are given in writing, a Litigant in Person may not understand exactly what he/she is supposed to do, or may not have the skillset to do it correctly.


Case Preparation

A Litigant in Person may not know:-

(i) Where to send information and documents and in what format. An instruction such as “Send it to the Respondent by (date)” can cause uncertainty;

(ii) Who is “the Respondent”? The Litigant in Person may be uncertain whether this means sending to the Respondent personally or their Solicitor or Barrister, or whether the court has to be copied in.

(iii) If sending it to the court is sufficient?

(iv) If e-mail is allowed?

(v) If documents can be scanned and sent?


Short Deadlines for Directions or
Orders

A Litigant in Person can sometimes take longer to carry out tasks than represented parties because of the unfamiliarity with the process and uncertainty of what to do. They may also be receiving advice from a Citizens Advice Bureau or other source, and may have to wait for an appointment.


Pressure from Represented Party

Sometimes a represented party can add to a sense of confusion and overload by sending repeated letters demanding more information and threatening to go back to court for orders or costs orders. It may or may not be legitimate for a represented party to be taking this approach. A Litigant in Person can be frustrating and even uncooperative and can make it very hard for the other side to understand and prepare the case for hearing. Careful thought should be given to bring about the most appropriate and fair result.


Compliance with Directions or
Orders

A Litigant in Person may not realise that court orders are more than aspirational. He or she may also fail to understand that if he or she does not comply with an order, he or she is at risk of an application being dismissed or a costs order being made against him or her. Although letters advising of the consequences of non-compliance are sent, a Litigant in Person may not understand the formal words and jargon involved. For example, non-compliance, penal notice etc.

Having said this, cases do need to be prepared and the other side is entitled to a level of information and co-operation from a Litigant in Person.


Disclosure of Documents

The duty to disclose documents is sometimes neglected by a Litigant in Person. This can apply, for example, in financial applications following divorce:-

(i) Some may have little or no appreciation that they should adopt a “cards on the table” approach and will try to hold back key documents until the hearing.

(ii) Some may hold back text messages, emails etc.

(iii) A Litigant in Person may not understand what documents count as relevant. They may need to be told, for example, that diaries and text message exchanges are included;

(iv) Late disclosure of relevant documents can cause delays at a hearing and can lead to an adjournment.


Trial Bundles

The term Court bundle can cause confusion. It should be explained that this simply means a tagged or lever arch file of documents. A Litigant in Person may find it difficult to understand the difference between disclosure and collating documents for the trial bundle. It needs to be explained to him that not all documents which have been disclosed need to be seen by the court at the final hearing.

Witnesses and Witness Statements

Litigants in Person sometimes do not realise they will have to give evidence themselves at a court hearing. They may not know what a witness statement is and their role in giving evidence at a hearing. A Litigant in Person should be informed of the consequences of failing to file or serve his or her own witness statement in advance of the hearing. A Litigant in Person may not understand that a witness statement is of little value without attendance of the witness in support. He or she should be directed to witness templates available from the court office or online.


Adjournments

Litigants in Person may not appreciate that they need permission of the court for an adjournment if a hearing date presents them with difficulties. A Litigant in Person may also fail to think about the fact that the other party may incur costs if the adjournment request is made right at the last moment. A Litigant in Person might ask for an adjournment or an extension of time in circumstances where the lawyer believes this is unnecessary. For example, a Litigant in Person might genuinely not appreciate the importance of the attendance of witnesses.

The granting of an adjournment or extension is always a matter of discretion and courts may more readily grant an application when it is sought by a Litigant in Person. The appellate courts are particularly concerned to ensure that a Litigant in Person is given every opportunity to present his case, in so far as that is consistent with fairness. A judge is more likely to grant an adjournment or extension where a submission or issue catches a Litigant in Person by surprise.

Sources of Law

Most Litigants in Person do not have access to legal textbooks or libraries where such textbooks are available and may not be able to download information from a legal website. Sometimes Litigant in Person do not understand the role of Case Law and are confused by the fact that the Judge appears to be referring to someone else’s case.


Compromise

A Litigant in Person can face potential difficulties in relation to compromise and negotiated settlements. He or she may not realise it is possible or how to go about it procedurally. He or she may not have had access to advice on the merits or value of his/her claim and may not know how to go about negotiation. He or she may find emotional difficulties in the concept of compromising his or her own case and they may be feeling pressure from friends or family members not to compromise.


The Real Issues of the Case

A Litigant in Person may not appreciate the real issues in the case. It is vital to identify and, if possible, establish agreement as to the issues to be tried so that all parties proceed on this basis. Time spent in this way can shorten the length of proceedings considerably.


Advocacy

A Litigant in Person can have difficulty in understanding that because there is a version of events being presented that is different from their own, this does not necessarily mean that the other side is being untruthful. A Litigant in Person may not understand the importance of “putting” his or her key points to the other side’s witnesses. Terms like “submissions” and “speech” may be unfamiliar. Advocates are expected to draw to the court’s attention a fair picture of the law and not omit cases which go against his or her side’s interests.


How can a Lawyer help?

  1. The lawyer should try to give a clear explanation to a Litigant in Person of the decision the court is being asked to make and the reasons for this. Try to use peoples’ names rather than labels such as Respondent or Applicant.

  2. Lawyers find it relatively easy to précis and identify key points of an argument. For many other people this is extremely difficult. As a result, when ordered to provide information, a Litigant in Person can either miss the deadline, avoid the task altogether or do it wrongly. If template or standard forms are available, the lawyer can direct a Litigant in Person to where they can be accessed together with any available guidance notes.

  3. Where practical, a lawyer should avoid asking for orders that a Litigant in Person will find confusing or difficult to deal with. Ordering a Litigant in Person to provide complex responses is rarely a good idea. Where necessary, it may be better to hold a directions hearing and talk a Litigant in Person through the case, extracting the required information and recording them in the court order and thus overseen by the court.

  4. As far as possible, the lawyer should seek to set deadlines that take into account the reasonable needs and resources of both parties. Excessively short deadlines should be avoided. Where a court order is being discussed at court, the lawyer can ask a Litigant in Person how long he or she needs to comply with a court order, impressing upon him or her the importance of sticking to their estimate.

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