Sunday, 25 March 2007

Litigants in person

I'm trying to make a point of watching some simple cases at the moment. Thus far on my pupillage I seem to either have been hanging around chambers writing blog entries, photocopying and so on, or in court watching major cases, the like of which I probably wouldn't be doing myself for five to ten years, if not longer. My second six isn't far away and, it being quite a while since I was at bar school, I really need to familiarise myself with the sort of work I might end up doing very shortly.

I saw a good example at one of the London county courts last week. It involved a lady who had been suffering what she considered to be harassment by a firm of bailiffs. Her ex-partner had moved out some four years previously but had given her address to some creditor. The bailiffs had therefore attempted on a number of occasions to seize her property. She was in court asking for an interim injunction to stop them.

The bailiffs meanwhile had realised that they had it wrong, that the guy had indeed moved out as she asserted and they were offering an undertaking to the court not to visit her house any more or to attempt to seize any of her property. The judge asked whether she was willing to accept the undertaking, which would effectively end the case, make a full hearing unnecessary and save costs. She declined, saying that they couldn't be trusted.

At this point, if the judge had explained what an undertaking actually is, that it is set down in writing and recorded by the court and that breaching it involves contempt of court, I think she would probably have accepted it as adequate. It is, of course, difficult to tell, as litigants often suffer from the delusion that their day in court will lead to some sort of personal vindication, the judge seeing it all their way and to punishment of the other side. However, the judge did not explain this, instead setting the case down for full hearing and granting the interim injunction as requested.

This lady will almost certainly lose her case in the end. The bailiffs probably haven't done anything unlawful, and without a lawyer on her side even if they have she won't be able to expose it. This means she will pay the legal costs incurred by the bailiffs, which are likely to run to several thousand pounds. I seriously considered following her out to have a quiet word, but this would have been an exceedingly bad idea on any number of levels.

Conducting your own case in court is also a bad idea, unless you know roughly what you are doing, but in this case it could have been an awful lot easier had the judge spent a few moments explaining the significance of an undertaking and the difference between this and an injunction. Without doing any research on the subject, an undertaking is voluntary but binding, breach of which can amount to contempt of court. An injunction is imposed by the court, often has an explicit penal notice attached to it, and enforcement in the event of a breach is probably more straightforward than with an undertaking.

It is worth pointing out that litigants in person are generally considered to be a real pain by lawyers. I recently read an interesting explanation of why in a new book by Professor Anthony Good. Many non lawyers think in what he calls a relational fashion, analysing a situation with reference to social and historical context. Lawyers are trained to think in what he calls a rules orientated way, looking for generalised and transferrable rules that can be extracted or applied. When a lawyer hears a relational account of a case, the lawyer hears irrelevant waffle, basically. Judges being lawyers, this approach doesn't tend to be very productive in the courts. I'd highly recommend the book. It's also a very interesting analysis of the (shoddy) treatment of evidence by anthropologists and other experts in the asylum courts.


Mr Pineapples said...

This blog just gets better.

Have you read "One L" by Scott Turow? (A Harvard Law student's first year). It's an amazing read and very insightful regarding the philospophy of the law and the strain between a rules based and beliefs based system.

I am not sure that the beliefs based approach can replace the Rules. Who's morality and beleifs do we guard in all of this?

keep up the good work

Smartie said...

Claimant litigant in persons who issue proceedings (and dont really know about pre-action protocols) are a real pain. The Court gets very sympathetic with them, however, usually giving them time to amend their claim just when you have filed for a strike out or judgement in default.

But small claims are the right way to start in Civil me thinks :)

Nearly Legal said...

I might have to have a look at that book. For obvious reasons, I come across that disjunction every day. I think that in some ways, the disjunction is generally more practical - often the hurt and distress a client wants addressing is simply not something that the relevant law deals with. Certainly the socio/narrative side is powerful - a strong sense of 'how can they treat me this way for so long', for example, is often more important that the specific loss or damage the law will consider.

This is a hard one for lawyers to manage. I think there is something to consider for all of us in how we translate between 'rules' and 'context' for the client.

However, the real pain with litigants in person tends to be that they have usually received and rejected legal advice and actively decided to go it alone.

This may be because their sense of injustice/entitlement is not matched by the legal advice they have been given, (hence the common accusation from the LiP that the lawyers are part of the conspiracy), but it also means that, on the whole, they will not see any practical sense at all, convinced, as you rightly put it, that a Judge will one day see the rightness and justice of their cause, despite all evidence to the contrary.

Anonymous said...

As a litigant in person ("LIP"), being sued for non-payment of service charges, I duly turned up at Willesden County Court. The freeholders were trying to have my lease rescinded.

There was a barrister on hand to provide free representation for deserving and, in my case particularly, non-deserving LIPs. I was grateful for his services.

The case was duly remitted to the Leasehold Tribunal. Job done.

I was surprised how formal the hearings were, with the judge resplendent in his red gown with purple and brown slash. The brown, I think, was from coffee. The free barrister who represented me looked like an older version of Rumpole. I was grateful that these two worthy gentlemen laboured hard for just over 3 minutes and between them produced an outcome in accordance both with the law and with common sense.

It's a shame that there was no free barrister on hand to advise the lady PupilBlogger saw getting her injunction. I have been in the High Court a few times as an expert witness, and I cannot recommend it as a place for LIPs.

Bystander said...

Down in the Magistrates Courts we are seeing more and more unrepresented defendants, as Legal Aid withers away, and they too are a pain, taking between two and four times as long to deal with as those with a brief.
I sat on a Crown Court appeal last year with an unrepresented and garrulous Libyan who was using a slow interpreter - result, two full days in the Crown Court that need not have taken more than a morning.