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The perils of DIY law: the high price of justice

I’m going to start this piece by making three straightforward propositions, writes Daniel Hoadley.

The first is that the law of England & Wales is difficult to get your head around. The second is that outcomes according to law are often not the same as outcomes according to common sense. Sometimes the law and common sense overlap, sometimes they do not. My final proposition is that most people wouldn’t want to go into court without someone trained in the law to advise them and plead their case, no more than most people would want to go into an operating theatre and perform surgery on themselves.

If you don’t find those opening remarks overly controversial, you’ll probably agree with me that a 61% rise in the number of reported High Court and tax tribunal cases involving unrepresented litigants (or litigants in person) since the financial crisis started in 2007 a bit worrying.

  • Daniel Hoadley is a law reporter for the Incorporated Council of Law Reporting for England & Wales and was called to the Bar in 2009.
  • You can read David Jessel on being ‘driven mad by the law’ HERE.
  • You can read more about DIY law on the JusticeGap HERE and in particular about last year’s report by the Civil Justice Council which called for explicitly warnings aimed at litigants-in-person as to their possible exposure to the huge costs of going to court.
  • Saw pic by Leo Reynolds

‘There is much to be said for the warnings to be equivalent to the warnings on mortgage advertisements and documentation to the effect that a “home is at risk” if mortgage payments are not maintained.’
Civil Justice Council

The ‘litigant in person’ phenomenon has received mounting coverage across the  press for well over a year. Things are going to get worse once the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force in 2013 – it would be utterly disingenuous to suggest otherwise. Where the pot of money that would otherwise pay for a solicitor or a barrister (or, if necessary, both) to appear in court isn’t being cut, the limits of eligibility for funding for legal representation are being severely narrowed. So, proverbially speaking, more and more people will have to perform surgery on themselves in the courts of England and Wales in the future.

Rebalancing the UK’s economy is undoubtedly part of the driving force behind the deep cuts to the legal aid budget. Nevertheless, there are those who paint most litigants in person as being ‘hopeless repeat-players, paranoid, or [those who] have lost all sense of proportion’. To be fair, the same can readily be said of many who can afford legal representation.

As a law reporter, I spend my working week hunting the Royal Courts of Justice (RCJ) for cases that change the law. The surge in the number of people addressing the Bench in their own right is impossible to ignore. More and more often I arrive in court to find a gentleman of middling age nervously sipping water and removing papers from a Sainsbury’s carrier bag with a bewigged member of the Bar standing diagonally behind him to the right.

I must confess that at one stage my view of litigants in person was uncompromisingly unsympathetic. They were amateur oddballs prone to rambling. Their claims were pedestrian and boring. Their submissions went on for far longer than was necessary. Then a case came along in the East Wing of the RCJ that completely turned my view around.

The claimant was a gentleman well into his eighties. He was frail and required a wheelchair in order to spare his legs whilst moving from A to B. He lived with his wife who was of a similar age and unable to attend court with him, his daughter had accompanied him to court instead. He struggled to project his voice, which had a very mild south London twang, in what is one of the smaller courtrooms in the RCJ. He was a little hard of hearing. And, unlike most litigants in person, he adopted the correct mode of address to the single Lord Justice of Appeal hearing the case (‘my Lord…’).

He had come to court to challenge the decision of his local planning authority to grant a property developer permission to build an apartment block immediately next door to his home. His argument centred on the assertion that the proposed development would obscure the flow of natural light into his home. Roughly speaking, to succeed in his claim, he needed to show that the planning inspector’s decision to grant permission was unreasonable. This was one of those cases, like so many others, that depended more on fact and degree than the state of the law.

I listened, together with the unusually large throng of rival reporters who had gathered in the room, to his earnest submissions. He and his wife were unable to leave the house all that often. Their home was not just where they lived, but where they lived their lives. How could it be reasonable to cast them into the shadow of a development that wasn’t there when they bought their home, my Lord? The planning inspector himself wouldn’t have put up with it, why should they? The claimant litigant in person did his best to stand throughout his submissions, but was invited to sit by the judge as the hearing wore on.

In contrast to the usual adversarial ‘barrister vs barrister’ hearing, the dynamic in this courtroom was different. The barrister for the defendant authority did his best to ensure the claimant had the right document to hand. Where a matter of fact was in doubt, he assisted the court frankly and objectively, in terms the claimant could understand. The judge too made sure he had correctly understood the claimant’s points, summarising them in plain English and checking that he appreciated the claimant’s arguments.

It is difficult to convey in writing how dignified the claimant was. He wasn’t saying the developer shouldn’t be able to build, he just didn’t understand how it could have been reasonable to build what they wanted to build, where they wanted to build it. Alas, things didn’t go the claimant’s way.

Killer blow
In an oral judgment, read slowly and at a decibel the claimant could receive, the judge rejected the claimant’s challenge. The planning inspector’s decision to grant the developer permission to build had been reasonable. When the judge had finished speaking the claimant, clearly confused, asked whether he’d ‘won or lost’. He’d lost. The result, from where I was sitting, seemed to fall upon the claimant like a tonne of hot coal. ‘What are we meant to do now, my Lord?’ But the worst was yet to come, the order as to costs.

Counsel for the defendant rose, almost reluctantly, to outline the costs incurred by the defendant local authority in defending the claimant’s challenge. The sum was analysed by the judge and accepted. And, then the killer blow fell. Not only had the claimant lost his challenge, not only was his home going to be cast (albeit, lawfully) into the shadow of an apartment block, but now he had to pay for the pleasure. It was too much for him to compute. How was he ever going to pay that off?

He didn’t get angry. He didn’t cite his ‘human rights’. He didn’t lose his dignity. He just asked rhetorically how it ended up like this – failure, and only a big bill he didn’t realise he was liable for to show for it.

At this point, some clever-clogs may come along and point out that even if our aged-litigant in person had been represented at the hearing, the substantive outcome might have been the same – it was a hopeless case that shouldn’t have been brought within ten miles of the Strand. But, this misses the point.

The real tragedy is that our litigant in person did not even realise that defeat would lead to an order for costs against him. To put it another way, he didn’t realise there was a risk that the misery that led him into one of the most intimidating buildings in London could multiply if he didn’t win on the day. This chap wasn’t a ‘repeat player’ or paranoid. He’d formed an unadvised view of where ‘justice’ would lead him and he followed it ignorant, through no fault of his own (he’s not a lawyer, after all), to the risks that failure would incur.

It is all too easy to paint litigants in person as melodramatic obsessives in need of protecting from themselves. Like the human body, the law of England & Wales is difficult to get your head around. A trained eye can nip poor actions in the bud early or steer those with merit to a happier conclusion. The law doesn’t always conform to the canons of common sense, it can produce unexpected and apparently illogical results. A trained mind can explain the difference between outcomes according to law and outcomes according to whatever notion of justice the lay litigant of justice happens to subscribe to.

The man who acts for himself has a fool for a client? Maybe, but only if he can afford otherwise.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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  • Rolo Tamasi

    I find it hard to comprehend that he had no knowledge of the risk of costs being awarded and wonder what leads you to believe he did not.

  • Andrew

    So the taxpayers of the district should have been left to foot the bill for being right?

    I make no bones about my belief that every private-sector claimant above the small-claims level should be required to produce a certificate of insurance for the liability to pay the defendant’s costs; the premium recoverable if the claim succeeds.

    And the LSC should be liable for the costs of the successful, unassisted and uninsured defendant who is sued by an assisted claimant – regardless of that defendant’s means.

    And the no-adverse-costs regime in the family courts and the employment tribunals should be abolished.

    And sealed offers should be brought back into matrimonial assets cases and introduced into the employment tribunals.

    Radical, if you like, but nobody should be allowed to litigate without responsibility.

  • http://twitter.com/C7RKY John Clarke

    Having pondered this for a while,
    has anybody ever explored the possibility of a ‘tariff’ of sorts which could be
    laid down, along the lines of the guideline amounts for payout against personal
    injury claims?

    Perhaps if there were an
    advertised ceiling limit on costs which can reasonably be incurred or recovered
    in defending a certain type of case (if the latter, any excess above such
    figure, you incur by choice and pay yourself), then this could at least be seen
    as a ‘worst case scenario’ which can be assessed in advance by those still
    willing to present their own case. No question of not realising beforehand
    then.

    I should also say that not all
    people find themselves in this situation willingly. I have first-hand experience
    of being let down by multiple people in positions of authority, which has led
    to the ridiculous scenario of having little choice but to undertake legal
    matters personally. Yes, this group included a lawyer, who didn’t just fail to
    make us aware of having a case, but point blank lied face-to-face in response
    to a direct question about it – I believe because it was too challenging and
    harder to win against well-funded, powerful opposition, so they just didn’t
    want to.

    Clearly, this caused a complete
    breakdown of trust and resulted in us no longer desiring their representation.
    However, as this relationship was (unfortunately) established on a no-win,
    no-fee basis, until professional negligence is established, the case is now
    tainted in terms of finding new representation. Who wants to take on a case
    when it may come complete with a bill which already needs paying to a previous
    firm from any potential damages, even if you win? Not many people in my experience.

    I agree Andrew that nobody should
    be allowed to litigate without responsibility, but the legal profession needs
    to take a long hard look in the mirror in my opinion when it comes to public
    accessing robust representation. Responsibility applies equally there too and
    as a lay person facing this daunting prospect involuntarily, I can only wonder
    how many others have found themselves in this same position.

    Controls over maximum cost
    recovery might at least prevent the seemingly crazy escalation of costs and the
    unreasonable imbalance of power that cases like this demonstrate, even if that doesn’t
    change a weak case into a strong one.

    It strikes me that there is a
    culture among those individuals or organisations who can afford to do so, of
    virtually ‘buying’ the result. The more expensive the lawyer, or the more of the lawyer’s
    time that you pay for, presumably the better the quality of representation and
    more successful the outcome for the most part. So it might cost you more up
    front to pay for them, but you’re just playing the odds on the basis of almost
    certainly not having to pay the bill at the end anyway. If your expensive and
    impressive legal team are able to simply crush the more affordable, or
    self-representing opposition, before then adding insult to injury by making
    them pay inordinate sums for the privilege, where is the justice in that? Not even a cuddle to go with it…as they say!

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