Top tips for members working with litigants in person

Resolution's Litigants in Person (LiPs) Committee has produced these top tips for members who are working with LiPs covering communication, court proceedings and managing client expectations.

Please also read the Good Practice Guide to working with litigants in person.

Communications

  • Your first contact with the LiP is key and is likely to set the tone for the way in which the matter is dealt with. As a helpful starting point, provide the LiP with a copy of the Law Society’s notes for LiPs which explains what a LiP can and cannot expect from you as the other person’s representatives and officers of the court. As the case progresses provide them with links/direct them to as many resources as possible without overwhelming them.  If referring to a Rule or Practice Direction include a link to the relevant page.
  • Be clear about how you will communicate with the LiP (preferably in writing to avoid any confusion or misunderstanding) and ask that all proposals are made and confirmed in writing. Let the LiP know that you will only respond to their correspondence once you have your client’s approval, except to acknowledge safe receipt, and keep them updated if you anticipate any delay in being able to respond.
  • If English is not the LiP’s first language, consider and seek confirmation as to whether they will need a translation of your letter/documents.
  • Ensure that all communications are written in plain English, avoiding jargon and explaining any legal terms. You can refer the LiP to Resolution’s resources for representing yourself in court as a litigant in person. Keep to the issues and wherever possible avoid clearly one-sided and/or unnecessary allegations/assertions.
  • Keep communications polite and to the point. Remember that the LiP is unlikely to have any previous experience of court proceedings and they may be feeling emotional and overwhelmed. Unless necessary, avoid expressing personal opinions on the LiPs behaviour and/or communication which may be emotive and unfiltered.
  • Remember to regularly remind the LiP to consider taking independent legal advice particularly in relation to offers, draft documents etc and to record on the face of any consent order you are able to agree that the LiP has been advised to seek their own legal advice (but has decided not to do so if relevant).
  • Set boundaries by only sending emails during office hours regardless of when the LiP may be emailing you.
  • A LiP may ask you communicate with them via a third party who may be someone presenting themselves as a McKenzie Friend or an agent authorised to liaise with you on behalf of the LiP. Remember that without leave of the court third parties have no right to act as advocates or to carry out the conduct of litigation and you must be satisfied that you are dealing with the LiP themselves.  If it assists them, the LiP may wish to give authority for you to copy into any email correspondence a nominated person. The Judiciary has some guidance on the role of McKenzie Friends.
  • Remember that you are under no obligation to accept or tolerate abusive behaviour, be it verbal or via written communications!

Court proceedings

  • Where appropriate (ie in cases where domestic abuse would not provide an exemption) make the LiP aware of the impetus placed by the courts on parties engaging in non-court dispute resolution (NCDR) throughout court proceedings (children and financial) and the possibility of the court adjourning proceedings to allow for this and/or imposing cost sanctions on parties who fail to engage with NCDR without good reason. Highlight the need for parties to attend a MIAM prior to proceedings being issued (and when appropriate within proceedings) and to file FM5 seven days prior to the first hearing and any subsequent hearing if so directed by the court.
  • Send the LiP notice of any hearing, confirming the date, time and location (consider including a map of the court address).
  • If English is not the LiP’s first language check whether they will need an interpreter, or whether they will require any special facilities at court because of a disability or for any other reason
  • Check with the LiP that they have been able to download and access any electronic bundle you send them in advance of the hearing and whether they also require a paper copy. If unable to access the electronic bundle, take a spare bundle to court for any in person hearing and duplicates of any important documents, in case the LiP forgets their copy.
  • Introduce yourself to the LiP by contacting them prior to a remote hearing or introducing yourself to the LiP when you arrive at court for an in-person hearing. Let them know how they can contact you/where they can find you. Take the opportunity to answer any basic questions they may have about the court process.
  • If representing your client at court, consider whether it would be appropriate to conduct any pre/post-hearing discussions/negotiations in the presence of a colleague. It is in any event always advisable to make a note of any discussions/guidance you have provided the LiP as soon as is practicable.
  • Consider whether there are any religious considerations, for example religious festivals to be taken into account by the court when listing future hearings.
  • Ask the judge to explain the order to the LiP, or if the judge does not have time, direct the LiP to services at court or suggest they obtain legal advice from a solicitor. Make sure that the judge’s directions are clear and complete to limit the scope for any confusion as to what was intended and/or that may later require further discussion.
  • If you consider it likely that the LiP is not going to engage with court directions, whether in a timely manner or at all, invite the judge to explain clearly the consequences of non-compliance. Consider recording this on the face of the order to limit the leeway a court may otherwise grant a LiP who fails to comply/causes repeated delay.
  • If the LiP does not engage in correspondence, and you have tried alternative methods of communication (telephone/letter/email), make sure that you give them sufficient and repeated notice of any application for directions that you may need to make if they continue not to engage.
  • Diarise court directions with the LiP in mind. For example, ensuring you serve the LiP with any evidence at the earliest opportunity. You should not necessarily seek to delay service because the LiP is not in a position to exchange if that would result in the LiP receiving the document later than the deadline provided for in the court order.

Managing client expectations

  • Make it clear to your client that you have a duty to the court to answer any reasonable questions the LiP asks you and to ensure the LiP is aware of the next steps in the matter, both in writing and in person at court.
  • Explain that the court will expect you to take the lead in preparing the case for any hearing, including compiling a bundle and drafting letters to any experts. This will add another layer of costs but will ensure efficient use of court time (and ultimately saving costs). Consider whether it would be appropriate to ask the court to direct the LiP to share the costs of preparing, for example, the court bundle.  Effective management of a case involving a LiP may result in the court making directions that it may not otherwise make were both parties represented.
  • Forewarn your client that the judge at any hearing is likely to treat the LiP with a degree of leniency that may not be afforded to their representative and to ensure that they feel heard will (within reason) give them the time to address the court on the issues the LiP deems important, even if they seem to them to be of limited or no relevance.
  • Explain that you will abide by the Resolution Code of Practice and will at all times maintain professional standards, even though a LiP may not act in the same way. Consider whether it is necessary to forward the LiP’s correspondence, if it may upset your client.
Resolution resources to share with clients
Resolution resources for members