Tips for dealing with litigants in person

Dealing with a litigant
in person (LIP) for the first time can be a baptism of fire. Gone is the assumption that your opponent knows the law and procedural requirements, issues of causation and the proper calculation of quantum might have been ignored, and you can sometimes be faced with a nonsensical pleading which fails to explain the basis of the claim.

Often it will depend on
the particular personalities of those involved and the facts of the case as to how you deal with an LIP on the other side, but there are a number of practical considerations to bear in mind.

• Consider procedural steps which can be used to deal with the claim, for example, strike outs, security for costs applications, part 18 requests, and asking the court to exercise its case-management powers. It is notable that the Law Society guidance (LINK) on dealing with LIPs, while warning against taking 'unfair advantage' (including bullying and making unjustifiable threats), specifically states that 'knowing and using law and procedure effectively against your opponent because you have the skills to do so, whether that be as against a qualified representative or an unrepresented LIP, would not in itself be deemed to be either taking "unfair advantage" or a breach of the SRA Code';
• Keep a record of all communications with the LIP - a clear paper trail can be of great assistance further down the line should any issues arise. Sending post by recorded delivery and backing up telephone conversations in writing can be indispensable where a particularly difficult LIP is involved;
• If there is a protocol or relevant procedural rule to follow, send a copy to the LIP, along with a link to the online version so they can check the position independently. In professional negligence claims, it is now a requirement that where a claimant is unrepresented, the acknowledgment to the letter of claim should enclose a copy of the protocol. Not only might this save time and costs in the long run but, if there has been a procedural breach, the court may be less lenient with the LIP than they would otherwise be;
• Allow longer for hearings and be aware that you may have to take on some of the duties that would usually fall to a claimant's solicitor (for instance, bundle preparation). This can add to costs, and so bear this in mind when preparing costs budgets.
• Encourage the LIP to seek legal advice if they haven't already. There are a number of firms offering free initial consultations, or organisations like the Citizens Advice Bureau which might be able to help. Sometimes an independent view can make all the difference and bring an end to a spurious claim, or at least help the LIP to formulate the claim properly; and
• Consider whether the LIP is capable of taking a reasonable approach to the litigation. Prepare a letter explaining why you think their claim is bound to fail or why they will not recover more than a certain sum in damages and offer to explain your view over the telephone. Some LIPs do take a reasonable approach when they understand why the claim is being defended.

Of course, while some LIPs can be reasonable, there are those who simply have an axe to grind and cannot accept they do not have a claim. With the demise of 'no win, no fee' and the recent hike in court fees, it might be that some claimants choose to forge ahead with their claim and save on solicitors' fees by representing themselves, or it may be they cannot find a solicitor to take on the claim.

Whether there will be a rise in the number of LIPs in the coming years remains to be seen, but most of us will at some point have to deal with an LIP, and hopefully the tips above will help to make it a relatively pain-free experience. SJ

Joanne Lewis is a solicitor at Kennedys