Monday, 28 May 2012

Litigants in person 1

There's been a High Court case reported recently which has some interesting observations about people who represent themselves.  You can read it here:

Maloney v. Filtons Ltd.

Now the case itself is a bit of a rare specimen which concerns the receiver of some property - not a commonly encountered set of facts or law (well, not for me at any rate!).  The interesting bit of the judgment is in the preamble.

"Until shortly before the trial the Defendants were represented by solicitors and had Leading Counsel...", "Throughout the hearing the Defendants were represented by one of its Directors, a Mr Moshin Kothia. Mr Kothia presented his case extremely lucidly and tenaciously and I pay tribute to his efforts in that regard. However, Mr Kothia, of course, is not a lawyer and it follows that things were missed of a legal nature which would never have occurred to him as a non lawyer."

Now there's the rub.  It rather looks as if the Defendants ran out of money to employ expensive lawyers shortly before the trial.  Their director seems to have done really a very good job in the circumstances and the judge was clearly very complimentary towards him.  However, it's a matter of simple commonsense that an experienced specialist lawyer is always going to be at a considerable advantage in court.  If that were not the case and our profession were simply a matter of smoke and mirrors, we'd have been exposed as snake oil salesmen years ago.  Please resist the urge to add an obvious comment about lawyers at this point!

"This case as this judgment will show demonstrates the difficulties a court faces at a trial when one party is unrepresented."  "It is always difficult to assist the litigant in person without giving the represented parties the impression that they are being punished for having representation."

The judge explains how it falls to him to ensure that the Defendants' case is properly aired at trial where the Defendants don't have competent trial counsel.  In other words, the judge has a great deal more to do. But as the judge makes clear, he cannot and must not descend into doing the Defendants' job for them.  There's a very difficult balance to strike and inevitably there will be times when the balance ends up skewed in one direction or the other.

With the impending demise of Legal Aid for family cases, I confidently predict that the present trend for parties to appear in court without legal representatives is going to increase dramatically.  It does absolutely nobody any favours.  Self representing litigants, as I understand the new terminology is going to be, will be at a disadvantage.  Judges will have to undertake far more case analysis and questioning of witnesses.  Lawyers, as the Claimant's QC in this case, will have to tutor the lay party in court procedure at their own client's expense.  New challenges for all - the timid should start looking for the exit doors right now!

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  1. Maybe, or maybe not. Jonathan, you are right about the disadvantage facing litigants in person, but as the culture of courts changes, so may the level of disadvantage. Judges have got into the way of relying on advocates - perhaps too much. After all, it is the judge's job to tease out the truth, to know and to apply the relevant law. Before lawyers became ubiquitous, often both parties represented themselves, and judges coped. Where I agree with you wholeheartedly is that when one party is represented and the other not, the paying litigant often funds the progress of the case.

  2. Trouble is, the judge can't know all the law there is. Three heads are always going to be better than one, provided they have some idea of what they're talking about. However, that's a big proviso, even where all three heads belong to lawyers!

  3. Judge responsibility is more as to make the decision after all the hearing from both parties lawyers.

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