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A look at Representing Yourself

A Litigant-in-Person (LIP) is a party to a case who appears at a hearing without representation by a lawyer. This may be because they can no longer afford such representation, because they have been refused Legal Aid, or because they believe that such representation will not be in their best interests.

Because the practice loses them money, and few professionals welcome amateurs, solicitors are dismissive of LIPs, and refer to them privately as ‘Lunatics in Person’. Generally the legal profession – including the judiciary – don’t like them, although Lord Justice Munby, the President of the Family Division, said in a submission to the Commons Constitutional Affairs Committee that he found it easier to settle cases when solicitors were not involved and the litigants appeared in person, "What you are getting is the facts as they see it without the assistance – and some people might put the word in inverted commas – of lawyers".

In many situations, representing yourself is your best option; you will save a small fortune and be in control of your case. The Court will not expect you to be as familiar with the law as a legal professional, but will expect you to put your case clearly. You must be able to be objective about your case – not always easy in such an emotional area – and to understand the legislation and case law. With the right support from an internet forum like Wikivorce and from McKenzie Friends you will be surprised by what you can achieve.

If you decide to go the LIP route you may need to communicate directly with your child’s other parent. If you have to visit them – for example to serve documents – take a witness, preferably a friend of the same sex as yourself; if you phone, record the conversation and then confirm the conversation in a letter. If you do not take these precautions you will open yourself up to accusations of harassment or domestic violence. Log every visit and conversation in your chronology.

Do not imagine that the court or the judge will help you. Whatever your reason for going to court unrepresented, it is not the responsibility of the judge to give you free legal advice. Heed the words of Mr Justice Tugendhat in a November 2012 defamation case:

It is not uncommon for self represented litigants to invite the court to act as a source of guidance. The court is under an obligation to do justice…But the English legal system is adversarial. The court employs no legally qualified staff to assist the judge. Not only is the court without any means to provide such assistance, the court is also obliged to be impartial. A litigant who explicitly seeks the guidance of the court in the way that [the litigant] does is seeking what he may suppose to be free legal advice. But he is seeking it from a source which is unable to provide it, and it is certainly not free. The hearing before me has generated very substantial lawyer’s fees, and someone has to pay them.

How to start

If you have been represented and intend now to represent yourself you must inform the Court and your solicitor of your intent. You do this through a ‘Notice of Change of Acting’.

Download Form FP8 and fill it out (it is only a single page). Part A is where you state your intent to act in person.

You send one copy to the Court, one to your solicitor and one to the other party’s solicitor. Until you have done this (and paid any fees still owing) your solicitor will not release your file to you.

In July 2010 the Legal Services Commission reported that the average cost of a publicly funded private law case was £3,285 [1] (in 2007 it had been £1,746 [2]). If they are receiving public funding, however, what solicitors can charge is restricted; if you are paying your own way no such restrictions apply and the chances are that you exceeded that cost a long time ago, and your case doesn’t show any signs of imminent resolution. If you are using a solicitor, at a rate of over £200 per hour, you could well run up costs in the order of tens of thousands of pounds. Many cases end only when one party runs out of money.

If you represent yourself you will save a great deal, but it still won’t be cheap. The cost of a basic application is £200 [3]. Further applications will cost between £40 and £400 depending on what you are applying for. One LIP known to the authors still managed to spend £120,000 on his case. These costs have been rising rapidly and are set to rise further in the future. As far as you can, try to apply for as much as possible on one application, and try to make any further requests to the Court on your existing application.

You need to factor in the cost of getting to Court, and if your case is transferred to the Principal Registry or the Royal Courts of Justice you will need to travel to London on a regular basis. If you are called for a three or four day final hearing see if you can find a friend who will put you up.

Some McKenzies work full time and charge an hourly rate; even if you use one who does not charge you must pay their expenses, and compensate them in some way for taking a day off work for you.

It all mounts up, and if you are on a low wage or out of work you may be tempted to go the legal aid route. We don’t recommend that. Legal aid is now very difficult to secure and it won’t cover everything, and a solicitor really won’t help you as much as you think. This is your child we are talking about. You’ll only get one stab at this. Now is the time to call in favours, grovel to your parents and your family; beg from your friends. Good luck. You’re going to need it.

The convention in family cases is that each side bears its own costs and there should be no order for costs where both parties reasonably present their case to the Court. Costs orders are rare unless a party behaves unreasonably or incurs unnecessary costs; only if you ‘go beyond the bounds of what is appropriate’ [4] or the other party is likely to suffer financial hardship should the Court order costs against you.

If you are representing yourself and your ex has a solicitor, every application you make or letter you write will generate additional costs. This can be used as a tactic to wear down unreasonable opposition to contact, but it can also backfire if the Court thinks you are being vexatious.

Claiming costs can be counter-productive as it can appear vindictive and provocative and in many cases you will be better advised to leave things as they are – why stir up another hornets’ nest? If you really want to claim costs you can claim £18.00 per hour (this rate increased on 1st October 2011 from the rate set in 1995 of £9.25 per hour.

It remains the case that if a costs order is made against an LIP he can expect to pay costs at rates in excess of £150 per hour. If he wins then unless he can prove pecuniary loss (i.e. he took time off work without pay to conduct his case) all he can recover is the paltry £18.00 per hour, for doing exactly the same work as solicitor and counsel. This is a violation of the ‘equality of arms’ principle [5]. In the family law context it is also indirectly discriminatory since many more men act in person than women.

Under Section 11(4)(d) of the Access to Justice Act 1999 the power to claim costs against a funded litigant is now governed by the Community Legal Service (Costs) Regulations 2000 (SI 2000/441 as amended by the ‘Costs Regulations’) and the Community Legal Service (Cost Protection) Regulations 2000 (SI 2000/824 as amended by the ‘Cost Protection Regulations‘). Under these regulations the function of deciding whether or not a costs order should be made against the Legal Aid Agency (LAA) is now assigned to the Costs Judge or District Judge.

· Regulations 9, 10 and 10a of the Costs Regulations determine the procedure for claiming costs;

· Regulation 5 of the Costs Protection Regulations determines the circumstances under which a claim can be made;

· The Costs Practice Directions determine the procedure for claiming costs.

The appropriate procedure was set out in R v Secretary of State for the Home Department Ex Parte Gunn [2001] 3 All ER 481:

Stage 1

In the first stage the Court, referred to as the Trial Court, deals with the substance of the dispute; these hearings are held in closed court. The role of the Trial Court is as follows:

i. To decide whether to make an order for costs against a funded litigant (Costs Regulation 9(1));

ii. To decide whether it is in a position to specify the amount, if any, to be paid by the funded litigant (Costs Regulation 9(2));

iii. To make a costs order against the client which either

a) Specifies the amount, if any, to be paid by the funded litigant and states the amount of the full costs, or

b) Does not specify the amount to be paid (Costs Regulation 9(3) and (4)).

The order is described in the Regulations as a Section 11(1) costs order and is defined in both sets of regulations as a ‘costs order against a client (the funded litigant) where cost protection applies’. ‘Cost protection’ means ‘the limit set on costs awarded against a client set out in Section 11(1) of the Act’.

iv. Where the order does not specify the amount to be paid by the funded litigant, to make, if it sees fit, findings of fact, as to the parties’ conduct in the proceedings or otherwise, relevant to the determination of that amount (Regulations 9(6)).

Stage 2

Stage 2 consists of the procedure to be followed to ascertain the amount of costs to be paid when the order made by the Trial Court does not specify the amount. Stage 2 also includes the procedure for determining whether an order for costs should be made against the LAA (Costs Regulation 9(5)).

i. If a costs order has been made in your favour you may, within three months of the making of the costs order (unless you can show good reasons for delaying the application longer), make an application to the Court on Form N244 for a hearing to determine the costs payable to you (Costs Regulation 10(2)).

ii. You may, at the same time, seek a costs order against the LAA (Regulation 10(3)(c)).

iii. You must, when making the request, file with the Court and serve on the funded litigant and the Regional Director of the LAA:

a) A bill of costs;

b) A statement of resources (unless the Court is determining an application for a costs order against the Commission and the costs were not incurred in a court of first instance);

c) A written notice that a costs order is sought against the LAA (Regulation 10(3), [3A] and (4)).

iv. The funded litigant must file a statement of resources and serve this on you and the Regional Director (where a claim is made on the LAA) (Regulation 10(6)).

v. The Court sets a date for the hearing (Regulation 19(9)).

vi. The Court conducts the hearing, assesses the costs (if any) to be paid by the funded litigant and, where appropriate, makes a costs order against the LAA.

Any determination made under Regulation 9 or 10 of the Costs Regulations is final (Regulation 11(1)). Any party with a financial interest in the assessment of the full costs other than a funded party, may appeal against that assessment in accordance with the Civil Proceedings Rules Part 52 (Regulation 11(2) and CPR 47.20). You may appeal either on a point of law, against the making of a costs order against the LAA, against the amount of costs the LAA is required to pay or against the Court’s refusal to make such an order (Regulation 11(4)). You may also in certain circumstances re-apply to the Court for an increase in the sum payable on proof of a significant change in the other party’s circumstances. Such applications cannot be made more than six years after the date of the first order under Section 11 (Regulation 12).

If the Court order allows costs against you it will say so on the order. Most orders will say ‘No order as to costs, etc.’. In that case the other party – or their legal team – will not be able to claim costs against you, although the solicitors may well try it on.

If all costs are awarded against you use as your precedent Re F (A Child) [2008] EWCA Civ 938 in which the father made allegations in good faith against the mother’s boyfriend which later proved to be unfounded and the mother made false counter allegations; the judge awarded all costs (£120,000) against the father, ignoring the mother’s bad behaviour entirely. The father appealed and the Appeal Court reduced his costs to £50,000.

Bear in mind, however, HH v BLW [2012] EWHC 2199 (Fam) in which costs were awarded against a father who, somewhat perversely, went ahead with an application for contact with his 16-year-old daughter, despite her clear objection to contact and the mother’s declaration that she would seek costs if he went ahead. The appeal judge said that the application was the only way the father could engage CAFCASS to determine the girl’s wishes and feelings, but that the cost in dispute did not justify the cost of an appeal and permission to appeal was refused.

Notes:

[1] Legal Services Commission Statistical Information, July 2010, http://www.legalservices.gov.uk/docs/stat_and_guidance/Stats_Pack_0910_23Jul10.pdf

[2] The National Audit Office, Legal aid and mediation for people involved in family breakdown, 2 March 2007, http://www.nao.org.uk/publications/nao_reports/06-07/0607256.pdf

[3] Civil and family court Fees, High Court and County Court – From July 2009, http://www.hmcourts-service.gov.uk/courtfinder/forms/ex50_web_0610.pdf

[4] Re F (A Child) [2008] EWCA Civ 938, http://www.familylawweek.co.uk/site.aspx?i=ed25322

[5] I.e. ‘a reasonable opportunity of presenting the case to the Court under conditions which do not place him in substantial disadvantages vis-à-vis his opponent’ (Kaufman v. Belgium, 1986).

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