Litigation should always be a last resort. Taking someone to court must be a last resort after all else fails and you feel that you have no other alternative. In fact, it should be avoided at all costs. It’s not an easy route, nor is it a cheap one. And you must be able to show you’ve tried everything else first.
In April 1999 the Civil Procedure Rules 1998 (CPR) came into force. Its overriding objective was to encourage parties involved in a dispute not to litigate. It provided measures and advice, such as the requirement to enter into mediation, or some other type of Alternative Dispute Resolution (ADR).
Failure to consider ADR could incur a sanction in respect of costs once the case gets to court. However, what the CPR also did, was to make the process more user friendly and less time consuming if the parties felt that there was no other alternative.
For example: terminology was made more understandable to the lay person. Terms to describe a person making a claim (taking another to court) used to be referred to as ‘plaintiff’ but, since the CPR, it is ‘claimant’ which speaks for itself. The word ‘pleadings’ was used to describe what the parties pleaded in their claim or in the defence (what their case was all about). Now these are referred to as ‘statements of case’.
The first most important rule where there is a dispute, is to contact the other party to try to resolve it face to face or at least negotiate a compromise that is acceptable to both parties. Failure to reach such an agreement may mean that litigation is on the horizon.
Nevertheless, let’s be absolutely frank about this: it is a very costly business to take someone to court, as it is to defend an action if someone has instigated proceedings against you. It can also be used as a threat by one party, to encourage the other party to comply with their wishes – this method of ‘persuasion’ is used more often than you would imagine, whether by legal professionals or individuals with knowledge and experience of the process.
It puts most of us in a precarious position since instructing a solicitor is extremely costly and financially draining. Most solicitors charge in the region of £300-£600 per hour, and there is no legal funding to assist. Legal Aid was virtually eradicated in April 2013 with the exception of urgent cases.
For example, where a person has been charged with a criminal offence which may mean incarceration if convicted, or where they are about to be evicted and made homeless. So, if the average consumer cannot afford to pay for a solicitor, then the only other alternative is to handle the matter as a ‘litigant in person’ (LIP).
There are other alternatives: if you are a LIP (i.e. you have not instructed a solicitor) you can instruct a paralegal to assist you through the process. A paralegal is not a practising solicitor or barrister, although many are qualified through those prescribed routes. Alternatively, they could be career paralegals who have qualified via specialist paralegal qualifications or have a requisite number of years’ relevant legal experience. Most paralegals will charge around £30-£80 per hour for their services.
While paralegals do not have a ‘Right of Audience’ – that is to say, they have no automatic right to speak on your behalf in open court (unless it is a small claim or before a Tribunal), they may be granted this right at the discretion of the Judge. This requires the paralegal to give notice to the court and request permission to do so. It may not be granted, so then the next best alternative, is to instruct a barrister on a Direct Access Basis i.e. you can go directly to a barrister bypassing the need to go to a solicitor first. Barristers may charge £200-£400 per hour for their services, but you only pay for the work they actually do e.g. consider the merits of the case, draft documents and presenting your case to the court.
Of course, instructing a barrister may also be outside your financial remit, in which case, you can represent yourself in court as a Litigant in Person. This will be a nerve racking process for someone without experience of ever being in a courtroom before. Questions such as: ‘Who starts talking first?’ ‘How do I address the Judge?’ ‘Where do I sit?’ spring to mind. If you have a paralegal working with you, they will be able to advise you on such matters.
Generally, when you face the bench where the Judge sits, the Claimant or their legal representative (the party bringing the action to court) sits on the left and the Defendant or their representative sits on the right but in fact, there is no hard and fast rule about this in a civil court. However, in a criminal court, the prosecution usually sits on the opposite side to where the jury sits. If you have a paralegal assisting you, then that paralegal can sit behind you.
When the case is introduced by the Clerk, the Judge comes into the courtroom and the parties (and their representatives) rise and nod their heads to acknowledge the Judge. The case commences with the claimant outlining their case and introducing any witnesses.
You address a Circuit Judge (the Judge presiding over the case in a County Court) as ‘Your Honour’. However, in a small claims case, you will be before a District Judge in Chambers (this is a much less formal way of settling a dispute) whom you should address as ‘Sir’ or ‘Madam’.
You would have already received the statements of case – the claim form and particulars outlining the claimant’s case. The Defendant would have submitted a Defence outlining their case. There would have been a scheduled timetable to follow, usually issued by the Court by way of an Order. This would mean that by a certain date and time, both parties would need to 1. Disclose to the other party, all the evidence that they intend to use to prove their case. 2. Produce and exchange witness statements. 3. Produce and exchange any expert witness statements (if required).
By the time the case arrives in court for the full hearing, you would therefore know all there is to know about the case and what the witnesses will say. The most difficult part of the process is to cross-examine witnesses who are called to give testimony in the witness box. This is a skill that is not easy. In a civil action (the one we are describing – as opposed to a criminal action) a claimant has to prove their case ‘on a balance of probabilities’.
This means that the Judge has to weigh up the evidence of both parties to ascertain which carries more persuasive weight than the other. The cross-examination of a witness is all about casting doubt on their testimony – perhaps discrediting them. This is where the skill of an advocate, such as a barrister, would come in useful, so it may be worth considering paying extra to instruct a barrister on a ‘direct access basis’ (DAB) if the case get that far.
This author’s mother was a barrister and very skilled at cross-examination. ‘You should never ask a question in cross-examination that do not already know the answer to’ is what she always said to me. I once saw her cross-examine and expert witness in a fraud case, and by the time she finished with him, his testimony had been torn apart and he left the witness box having been totally discredited.
Finally, as already mentioned, there are always huge cost consequences to litigation and it is unfortunate if you are a defendant who is forced to defend an action, because even if you win your case, the court may not grant an order for the winning party to pay all your costs. This is why the parties’ conduct in a case is so very important throughout the proceedings. You must always be seen to be amenable to settling the matter and reasonable in all correspondence.
In conclusion, the best way to deal with a dispute of any kind, is to come to an amicable resolution if you can. However, both parties must want to do this, and it may prove difficult if one party decides not to enter into such discussions. The next step is to suggest ADR – mediation. Again, both parties must want to willingly enter into this process. The final alternative is to litigate, but ensure this is fully thought through beforehand, particularly in respect of the costs. Remember, a paralegal can offer you plenty of advice and assistance if you need it.
By Amanda Hamilton, Chief Executive of the National Association of Licensed Paralegals (NALP)
ABOUT THE AUTHOR
Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit membership body and the only paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres around the country, accredited and recognised professional paralegal qualifications are offered for those looking for a career as a paralegal professional.