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Surge in 'DIY' justice sparks guidelines for lawyers

Date:4 JUN 2015
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A surge in the number of people representing themselves in court has prompted legal organisations to draft guidelines for lawyers who come up against people who find themselves in court without legal representation.

The guidelines have been developed by the Bar CouncilChartered Institute of Legal Executives (CILEx) and The Law Society in response to the rising numbers of people representing themselves in court without a lawyer as a result of cuts to legal aid, the increase in the small-claims limit and the introduction of employment tribunal fees.

The practical guidelines are relevant to the civil and family courts and tribunals, where there has been an influx of people who cannot afford to instruct a lawyer, have not been able to obtain free legal advice and often have no alternative other than to embark on 'do it yourself' justice.

The guidelines discuss how far lawyers can help unrepresented people without this conflicting with their duties to their own clients. Lawyers are advised to communicate clearly and avoid technical language or legal jargon, or to explain jargon to the unrepresented party where it cannot be avoided.

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Law Society president Andrew Caplen said:

'Cuts to legal aid and increases in court fees have forced more and more people into "do it yourself" justice, where they find themselves dealing with unfamiliar procedures in busy courtrooms whilst trying to resolve often life-changing issues regarding their families, their homes and their futures. We recognise the difficulties that people face in these circumstances and the consequent challenges created for lawyers acting for represented parties. We hope that these guidelines will help everyone concerned with cases involving self-represented litigants, but would again emphasise that the cuts to legal aid need to be urgently reviewed by the incoming parliament.'
Chairman of the Bar, Alistair MacDonald QC, said:

'The people who lose out most from the rising tide of litigants in person are the litigants themselves. It is one of the worst outcomes of the legal aid cuts that people facing major life events such as a family break up, have little choice but to put their case alone and without legal support or representation. It would have been easy for the legal profession to sit back and let the chaos play out in order to highlight the full impact of the cuts. However, we believe access to justice is a fundamental part of the rule of law and are doing all we can to help limit the impact upon those who find themselves in this dire situation. As well as supporting this initiative, in 2013 the Bar Council produced A Guide to Representing Yourself in Court, with the specific aim of giving litigants in person a better understanding of how to represent themselves in court. However, there is only so far the legal sector can go in tackling this problem. It won't go away unless the cuts to civil legal aid are restored so that those of limited means can, again, have proper access to justice.'
CILEx president Frances Edwards commented:

'In drafting these guidelines we have sought to give useful information so lawyers can best support those without legal representation. The ability of any litigant to have access to justice should be the key outcome of our legal system yet, at present, traversing the justice system in the best of circumstances is a challenge, and we expect to see litigants in person in substantial numbers for many years to come. Therefore, whilst we hope these guidelines will help, it does not alter the need to ensure litigants are placed at the heart of the justice system. Meanwhile, we will continue to press for the cuts to legal aid to be reviewed so that legal help is available to those who need it, and maintain our campaign for better access to justice and legal assistance for all.'
Lord Dyson, master of the rolls, commented:

'I warmly welcome the publication of these joint professional guidelines, and the collaboration of the three leading professional bodies in producing a valuable and timely reference for lawyers.

An increasing number of litigants in person are coming before courts and tribunals in all jurisdictions, and the challenge for all of us in the justice system is to make sure that everyone is treated equally, fairly and impartially and according to the law.

This presents particular challenges for practitioners, with the interests of the client and the duty to the court seemingly coming into conflict. However, ultimately, a client is best served by a fair and transparent system.'
The guidelines and accompanying notes are available to download below:

Litigants in Person Guidelines for Lawyers - June 2015

These Guidelines are intended to offer practical advice to lawyers on good practice that is broadly applicable across the civil and family courts and tribunals.

Litigants in Person Guidelines for Lawyers - Notes for Clients
These notes explain how one's lawyer will deal with the other side in a court case if they are representing themselves.

Litigants in Person Guidelines for Lawyers - Notes for Litigants in Person
These notes are to help litigants in person understand what to expect (and what to not expect) from the lawyer for the other side in court proceedings.

Litigants in Person Guidelines for Lawyers - A Selection of Relevant Cases

This guidance is co-authored by the Bar Council, Law Society and CILEx. It is reproduced here with permission of the copyright owners.