Litigants in Person – Guidance for professionals

Litigants in Person are here to stay – the Bar Council, Law Society and CILEX have produced a joint guidance document. Litigants in Person – Guidance for Professionals – how legal representatives should deal with cases in which other parties are without formal representation.

The guidance applies to civil and family proceedings. The full guidance can be found at http://barcouncil.org.uk/for-the-bar/professional-practice-and-ethics/litigants-in-person/

The Litigants in Person guidance also covers the involvement of, and duties towards, MacKenzie friends.

The core message of the Litigants in Person – Guidance is that the duty to act in the best interests of the client does not supersede the duty of the advocate to the court.

Interestingly, the Litigants in Person guidance includes two sample documents, one to be given to the Litigant in Person and one to be given to the legal representative’s own client in order to explain the duties to both. Therein lies the rub: the process of assisting a Litigant in Person can be confusing and potentially irritating to the client who has instructed his/her own legal representative, especially where they do so at considerable cost to themselves.

The “Notes for clients” document which the Litigants in Person guidance recommends giving to a client when the other side is a Litigant in Person states:

“As your lawyer may need to spend more time on such tasks as required by the court, and especially if your charges are based on time spent, they may be increased. Your lawyer will be able to explain the impact on the overall costs. Ultimately, the court may require you to meet the cost of a task which it asks your lawyer to carry out” Litigants in Person – Guidance

We can all imagine the response of the fee-paying client to this paragraph in the event the bill is significantly higher as a direct result of the lawyer bearing the burden of tasks which would ordinarily be undertaken on a joint basis.

However, in my view, the real issue about dealing with Litigants in Person is how far the lawyer concerned considers s/he is obliged to go to assist the Litigant in Person in the interests of justice. No Litigants in Person guidance can really assist with that; it is a matter of fact, degree and ultimately judgment in each individual case. Given the prevalence of Litigants in Person in the family courts however it seems likely that this issue will continue to be an important one for some years to come.