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The status of legal representation has recently appeared in the news, again. Readers of our blog might already be aware that since LASPO (the Legal Aid, Sentencing and Punishment of Offenders Act, 2012) when Legal Aid was largely removed for family cases, more than a third of all family court proceedings feature unrepresented parties (litigants in person) on both sides with many more family hearings where one party is represented and the other is not. Huge numbers of litigants are having to find their way through the minefield of law and procedure rules without legal assistance. Problems arise for all concerned, even for parties who are represented by solicitors, in seeking to ensure fairness throughout the court process, when access to legal process and information is not adequate or equal.

In response to this, the latest February 2018 edition of the Equal Treatment Bench Book, published by the Judicial College, the organisation through which the Lord Chief Justice and the Senior President of Tribunals deliver training material to the judiciary of England and Wales, provides detailed guidance to judges on a wide range of social issues facing courts, including the issue of fairness to litigants in person (LiPs).

Controversially, it initially states that judges must treat LiPs fairly and not class them as a problem to be resented. The legal system has grown around the concept that lawyers and barristers will know and understand the rules, so this is an indication of the difficulty facing judges when one or more parties does not. The report goes on to advise judges to use plain English, preferring, for example, the use of names instead of dry terminology like ‘respondents’. In addition, the guidance suggests, commonly used terms like ‘trial bundle’ should be defined. Judges are advised to ensure that they show consideration to litigants in person, given them a reasonable opportunity to present their case, and to try and avoid saying things that make them feel excluded.

The new publication is intended to help ensure that people left court “conscious of having appeared before a fair-minded tribunal”. The book stresses that increasing numbers of litigants in person are now appearing before judges thanks to the LASPO drastic cuts in Legal Aid and suggests that their numbers will only continue to rise.

The recent case of Barton v Wright Hassall LLP, in which the Supreme Court has now given judgment, evidences precisely the problems experienced by litigants in person who are struggling to function in a system they often barely understand and demonstrates how easily they can fall foul of the system.

The case concerned a negligence claim by Mr Barton, a litigant in person, against his former solicitors. Unfortunately for him, he served his claim form on the solicitors who were acting for his former solicitors by email, apparently unaware that, under the rules, service by email is only allowed if the party who is to be served has previously indicated in writing that they are willing to accept service by email. The solicitors had not indicated this. Consequently, the claim was not properly served and was subsequently ruled invalid.

Mr Barton challenged this, but a district judge ruled that he was not entitled to ‘special rules or indulgences’ simply because he was a litigant in person, and in March 2016 the Court of Appeal upheld that decision. Mr Barton took the case to the Supreme Court, and the Supreme Court has now also ruled against him, by a majority of 3 to 2.

Giving the leading judgment, Lord Sumption said, “…some litigants may have little option but to represent themselves. Their lack of representation will often justify making allowances in making case management decisions and in conducting hearings. But it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court”.

Lord Sumption went on to explain, “The rules provide a framework within which to balance the interests of both sides. That balance is inevitably disturbed if an unrepresented litigant is entitled to greater indulgence in complying with them than his represented opponent. Any advantage enjoyed by a litigant in person imposes a corresponding disadvantage on the other side, which may be significant if it affects the latter’s legal rights … Unless the rules and practice directions are particularly inaccessible or obscure, it is reasonable to expect a litigant in person to familiarise himself with the rules which apply to any step about which he is about to take”.

The case also confirms for litigants in person that they cannot expect the solicitors on the other side to help them if they fail to comply with the rules. It was argued on behalf of Mr Barton that there was no real disadvantage to the other side in him serving the claim via email because the purpose of service is to bring the contents of the claim form to the respondent’s attention. It was argued that the respondent’s solicitors were just “playing technical games” by refusing to accept service by email. Although Lord Briggs and Lady Hale agreed that Mr Barton had “achieved all that which the rules as to service by email are designed to achieve”, the issue was really whether a litigant in person should be given special indulgence.

As Lord Sumption said, “Even on the assumption that they (the solicitors) realised that service was invalid in time to warn him to re-serve properly or begin a fresh claim within the limitation period, they were under no duty to give him advice of this kind”.

Despite the new advice to judges, litigants in person are on their own. They can expect to be treated equally by the judge and fairly by the other side but cannot expect special treatment for not knowing how to proceed. At Cambridge Family Law Practice, we would always recommend seeking legal advice and representation at court. We work flexibly with clients and can also assist in the background if you are representing yourself.

If you have any questions about legal representation at court or any other family law matter, you can call us on 01223 443333 and ask to speak to Simon, Adam Tricia, Sue or Gail.