Pay Up or I’ll…Wait For It!


The 7-day letter is one of the oldest forms of legal communication. Asking your lawyer to write to a debtor telling them to pay up or be sued has been around since Victorian times, and indeed for a lot longer. The exact form, and the period given, has varied over the years. When I qualified (a disturbing time ago now) it was usual to give 7 days, although the court were fairly sanguine if you gave less, and given that all communication was by letter, and all payments by cheque, the debtor would have to get their skates on to get payment to you in time. The letter could be very short and to the point, and no information other than the amount due and perhaps the invoice number was required.

Then the Pre-Action Protocol in the CPR increased the length of time to at least 14 days, and required certain basic information, and the provision of details of where to get help to be given to non-businesses. This was generally felt to be a good idea, although some debtors would play the system, asking for extra time to take advice when they had no intentions of taking any. But it meant that you might get offers of settlement before you issued proceedings rather than afterwards, which did at least save the issue fee. And you might be able to weed out the debtors who had no income or assets and so weren’t worth suing at all.

Well, everything has now been turned on its head, at least in respect of claims against individuals by businesses by the Pre-Action Protocol for Debt Claims which comes into force on 1st October 2017.

The Scope of the Protocol

It covers any business (including sole traders and public bodies) claiming payment of a debt from an individual (including a sole trader). It complements any regulatory regime applying to the creditor (eg  under the Financial Conduct Authority) which must be complied with as well, but does not apply to debts covered by other Protocols , such as the Construction and Engineering, or the Mortgage Arrears Protocols, or to claims by HMRC for taxes and duties (covered by PD7D).

So a claim against a consumer or a sole trader (eg F Bloggs t/a The Red Lion PH) is covered. A claim against a partnership or a limited company (eg F Bloggs Ltd t/a The Red Lion PH) isn’t.

What is Required

I am afraid that there is no alternative to setting a lot of the Protocol out in this piece, although I have summarised where I can. The exact wording can be seen via the link here and above.

  1. The Letter of Claim

The creditor has to send a Letter of Claim to the debtor. So far no real change. Note however that this must be sent by post – email or other electronic means will not do unless the debtor has expressly requested that the post is not used. And the Letter of Claim needs a lot more information than before, including:

  • the amount of the debt
  • whether interest or other charges are continuing
  • details of any oral agreement
  • the date and parties of any written agreement and an offer to supply a copy on request
  • assignment details if relevant
  • if regular instalments are being offered, or paid, an explanation of why the offer is not aceptable and why a court claim is being considered
  • how the debt can be paid – where and how – and how to discuss payment terms
  • the address where the completed Reply Form should be sent

The creditor also needs to send

  • an up to date statement of account, or details of how the claim is made up including any interest and administrative charges
  • the Information Sheet and Reply Form in Annex I
  • a Financial Statement form (like the example at Annex II)

2. The Response by the Debtor

If the debtor does not respond within 30 days the creditor can start proceedings.

If they do (using the Reply Form) they can ask for copies of any relevant documents, supply any document sof their own, and make proposals. The creditor should allow at least 30 days from receipt of the Reply Form, or 30 days from provision of any documents requested before issuing proceedings. If the debtor needs more than 30 days to get debt advice they can ask for it and the creditor should allow extra time if reasonable in the circumstances.

Any proposals for payment by instalments should be considered and if not acceptable the creditor should give the debtor reasons in writing. And a partly completed Reply Form should elicit an attempt to contact the debtor to obtain further information.

3. Disclosure of Documents

If the debt, including any interest or time for payment etc, is disputed the parties should exchange information and documents to enable them to understand each other’s position. And if the debtor asks for a document or information it should be provided within 30 days, or an explanation should be given as to why it is unavailable.

4. Attempts to settle and ADR

Parties should negotiate on any points still in dispute using ADR if appropriate. This can range from discussions to formal steps such as mediation in a larger case.

If the parties reach agreement on repayment the creditor should not start court proceedings while the debtor complies with the agreement. And if they wish to start court proceedings at a later date they must send a new Letter of Claim and start the Protocol afresh, although they don’t need to send documentation again if it has been sent in the last 6 months.

5. Taking Stock

If the debtor has responded to the Letter of Claim but agreement has not been reached the creditor should give them at least 14 days’ notice of their intention to start court proceedings, to allow both parties to review their positions and see if proceedings can be avoided.

The Consequences of not Complying with the Protocol

These are the usual consequences of not complying with a Pre-Action Protocol – the court can give more time, penalise in costs or interest or in other ways. But it looks at the substance, and is not concerned with minor or technical breaches.

It is not clear at present how far the courts are going to enforce compliance with the Protocol, given the enormous number of debt claims that go to a default judgment and enforcement without any court officers actually looking at them. The other protocols generally cover areas which are disputed and where the parties can raise breaches in a Defence or application of some kind. Most debt claims are undefended and with most debtors unrepresented they may not know if corners have been cut or even avoided altogether. See below.**

The Annexes

You really need to read the Protocol for these. They set out

  • An Information Sheet (compulsory)
  • A Reply Form (also compulsory)
  • A Standard Financial Statement (an example)

So What does a Creditor Do?

This cannot be ignored. It will have a radical affect on the recovery of debts from individuals, and unless businesses adapt appropriately they may suffer a disastrous hit to their cashflow. Because today’s 14 day letter will turn into between 30 and 104 days under this new regime, and possibly more if the debtor goes through the process, agrees to pay and then only pays a couple of instalments, when the Protocol must start again.

Possible suggestions:

  1. Don’t allow credit – get paid up front before the goods or services are supplied. You may lose some customers, but customers who don’t pay aren’t worth having.
  2. If you deal with businesses consider avoiding sole traders. Claims against partnerships and companies are not affected by this. Although a small company may not be worth suing either, for different reasons.
  3. And make sure you know who you are contracting with (always a good idea anyway). Is The Red Lion PH run by a sole trader, or a partnership, or a company, and if so who are they?
  4. Credit-check you customers before you do business with them, not just before you sue them.
  5. Start the process very early – the moment that the payment becomes overdue.
  6. Send non-protocol letters chasing debts as present, knowing that at the end of the day you probably won’t sue for claims below a certain value.
  7. Insure, or factor, or sell your debts, or consider doing so. 50% of a debt that is actually paid is better than 100% of a debt that isn’t.
  8. Get some training so you can get things right, or pass the debt collection to an outside collector who knows the ropes.
  9. And get your paperwork in order. The new system will expose errors that you used to be able to hide in the past.
  10. Or hope for the best and see above.**

And the Verdict?

When the Mortgage Arrears Protocol was introduced a number of years ago there was much concern in the industry that the new procedure, not that different to that given here, would make mortgage arrears impossible to recover. In fact, once the lenders had got used to things I understand that it made very little difference, and although the process took longer this merely allowed the borrowers who could pay if given time a bit more time to pay, to everybody’s advantage. The borrowers who couldn’t pay were evicted a bit later, but as most of the debts were covered by the security of the houses the lenders got paid in the end. So on the whole it was a good result.

I’m not sure that this will happen here. Consumer debts aren’t covered by security on the whole, and small businesses can be badly affected by delays in payment. There is a lot of scope for the ingenious debtor to delay things and play the system.

These procedures may be appropriate for a finance company, or a credit card company which is recovering debts on a large scale, although they are already covered by the FCA’s requirements which are not that different. They are less appropriate for the plumber or nursery, or indeed the  friendly local solicitor who don’t insist on payment in advance at the moment. Although that may have to change.

It will be interesting to see how this works out.


Airlines run into Wall – Supreme Court Says No

At the beginning of September I published a piece on Huzar v about making claims against airlines for delays, under the EU Regulations (here) and reported that the airlines who had lost in the CA has applied to the Supreme Court for permission to appeal. The substance of the argument was whether a technical defect which caused a delay could amount to “extraordinary circumstances” and hence provide a defence to a claim by a passenger delayed by more than 3 hours.

Well the SC has decided the matter in double-quick time, by deciding NOT to decide the matter at all. They rejected the application for permission to appeal, saying in their rather terse way that

the application does not raise a point of law of general importance and, in relation to the point of European Union law said to be raised by or in response to the application, it is not necessary to request the Court of Justice to give any ruling, because the court’s existing jurisprudence already provides sufficient answer.

The SC also decided an appeal on another airline case – Thomson Airways v Dawson – which was about  whether the limitation period for bringing claims was the normal 6 years or the restricted 2 years imposed on most airline cases by the Montreal Convention. The CA said, not without some hesitation, that it was 6 years. The SC had a lot less difficulty – it refused permission and said merely that

the application does not raise an arguable point of law

So that is that.

The outcome is presumed to be an avalanche of claims against airlines as any delays that are not caused by (in effect) external forces (such as volcanoes, air traffic control problems, wars etc) and which result in a delay of more than 3 hours in arrival can net the passengers up to €800 each.

They are still of course pretty small claims, and so uneconomic for lawyers to bring unless they can do so in real volume, such as Bott & Co do. But hopefully this now means that more passengers will be able to bring them on their own, without having to face the airlines’ arguments that the CA and SC have now comprehensively demolished. Although the airlines may well continue to be difficult and inventive as they have been since the regulations were introduced 10 years ago in 2004.

Some commentators say that the total claims will amount to £10bn (or even £20bn). Who knows, with estimates so far apart?

The downside of course is a possible end to really cheap air fares. Because there is no such thing as a free lunch.


It now seems that the additional cost may be between €1 and €3 per one-way ticket according to a report by the EU Commission mentioned on the Bott & Co website here . So possibly not as bad as it seems.

Charges in the Air – Compensation for Delays

Today, at the end of the holiday season, I’m going to talk about what happens if your plane was late, or indeed was cancelled, and how you can get compensation for your inconvenience. And I’m doing this as I’ve just done an interesting claim of this sort for a couple of clients, so I have done the research already and want to have an opportunity of using it again, while it’s still relevant, and I can read my notes. Because it is an amazingly complicated and frustrating experience.

The Law – Part One

As you might expect, this is EU legislation, and so nothing is quite as it seems. The current Regulation is 261/2004 and Arts 5,6 & 7 provide for compensation of varying amounts if passengers with tickets for  flights that start  in the EU, or end in the EU and are by an EU carrier, are denied boarding, either because the flight is cancelled or because it is overbooked. The amount of compensation is a modest €250 or €400 or €600 each, depending on the length of flight. But the compensation is not payable

If [the operating air carrier] can prove that the cancellation is caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

In addition the carrier has to provide reasonable refreshment and accommodation for the passenger and put them on a suitable replacement flight at no additional cost. And all these rights can’t be waived, or taken away by the small print.

Now, this being the EU “cancellation” doesn’t just mean cancellation. The ECJ decided in the  Sturgeon (2012) decisions  that this included a delay of more than three hours. If your flight arrives more than three hours after the scheduled time you have a claim. The reasons are basically irrelevant, and so is the amount of actual inconvenience that you suffer.

This is important. Not many flights are actually cancelled, and there is a lot less overbooking than there used to be, and airlines realise they are messing you about if they stop you boarding, so are prepared to offer deals. But lots of flights are late, for a variety of reasons, and if you have a flight from say Tenerife to Manchester with 250 people on it that is more than three hours late this adds up to total compensation of €100,000. Which hurts, especially of you are a budget airline and are only charging a £120 return fare. So as you might imagine the airlines have been making claiming less than simple, or convenient.

How to Claim

The Regulations mention payment “immediately”, but of course this is unusual. And most people do nothing, so get nothing either. But if you do want to make a claim then normally you have to write in to a claims department and wait. In due course the claim will be refused. So what do you do then? Well another chunk of passengers give up at this stage too. But you are a more determined lot, surely.

The Regulations expect enforcement to be by national enforcement authorities – in the UK’s case this is the CAA, but you can apply to the body for the other end of the flight if you wish. They can fine airlines that regularly fail to comply with their obligations. This doesn’t help the passengers much. And they operate various non-binding forms of dispute resolution – AESA, the Spanish authority, operates a written arbitration procedure, in English and Spanish  (and possibly other languages if you want to be difficult) that seems to be fairly quick and effective. But the airline doesn’t have to pay up if it doesn’t want to. And it doesn’t. So what then?

Well, you can go to court in either the departing or arriving EU country and make what in England will be a (very) small claim. In fact you can go to court without bothering with the CAA or AESA at all, and this is probably the best course, after a protocol letter demanding payment and enclosing the appropriate proof.

The airlines tried to argue that there was no right to go to court, and almost succeeded in the CA case of Graham v Thomas Cook (2012) but fortunately the ECJ held in McDonagh v Ryanair (2013) that this was nonsense and that there was a clear right for a passenger to make a claim before a national court for this compensation.

So you might think it was easy – write to the airline making a claim, and if they don’t pay pop in a Money Claims Online to the court with your fee, and a few months later turn up before a puzzled DDJ in your local court for a Small Claims Trial. Not so fast – there is more law to deal with first.

The Law – Part Two

If you look back to the top of this piece you will see a reference to

extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken

There are some examples given in the Preamble to the Regulations, and they cover things like coups and insurrections, bad weather, security risks, air traffic control problems and strikes. These are all external causes and clearly you can’t hold the airlines liable for this sort of thing. The Iceland Volcano a few years ago is a particularly good example of this. Do note however that the obligations to provide refreshment and accommodation etc isn’t affected by this exception, and the airline still has to provide it – the Ryanair case above was on this very point.

Now airlines thought about this and decided that they only had to pay compensation if they were in some way to blame. For example if they forgot to book a pilot then it was fair enough, but not if the booked pilot fell ill. Or if some part of the (extremely complicated) aircraft broke because it hadn’t been serviced properly they would pay up, but not if it just broke for no predictable reason. And given the paper-thin servicing teams and the lean operation that some airlines use this could happen quite frequently. And they could always say it, and who would know? Certainly not the passenger.

Fortunately the ECJ wasn’t having this and in the Wallentin-Hermann  (2008) decision they held that

Article 5(3) of Regulation (EC) No 261/2004…..must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control.

They said it was a matter for the courts to determine in each case, but gave an example of something that couldn’t be an “extraordinary circumstance” – a failure caused by inadequate maintenance – and of something that could be – a manufacturer’s recall of multiple aircraft because of some safety problem.

You might think that this would have ended the argument, but remember there is potentially a lot of money at stake here, so the airlines shifted their ground. How about arguing that it depends whether the failure was within the airline’s control? So if a part which has a normal life of 5,000 hours fails after 4,000 hours without warning then it is beyond their control. But if it has reached its expected life then it ought to be replaced and so it is in their control.  There is quite a lot of scope for this.

But no longer. The CA in the strangely named case of Huzar v (2014) has upheld a decision by HHJ Platts sitting in Manchester who pointed out that air carriers have to encounter and deal with unexpected unforeseen and unforeseeable technical problems as part of running an airline. They cannot be said to be an extraordinary circumstance. Elias LJ said:

In my judgment, a proper understanding of the inter-relationship between the two limbs should focus on the concept of “extraordinary circumstances” itself, the language used in Article 5(3). This requires that the circumstances must be out of the ordinary, as the Court noted in Sturgeon. As the CJEU recognised in paragraph 24 of Wallentin-Hermann, difficult technical problems arise as a matter of course in the ordinary operation of the carrier’s activity. Some may be foreseeable and some not but all are, in my view, properly described as inherent in the normal exercise of the carrier’s activity. They have their nature and origin in that activity; they are part of the wear and tear. In my judgment, the appellant’s submissions fail to give proper effect to the language of the exception….. It makes an event extraordinary which in common sense terms is perfectly ordinary.

He pointed out that if you exclude unforeseeable problems then the courts are going to be filled with arguments about whether such and such a problem should have been picked up during servicing, which would need experts and much study of documents and that would be most unsatisfactory.

And he blocked off another loophole:

The appellant advanced one further argument. It was suggested that an unforeseeable technical problem would constitute an unexpected flight safety shortcoming which recital 14 identifies as a potential extraordinary circumstance. I do not accept the submission; the fact that a particular technical problem may be unforeseeable does not mean that it is unexpected. Problems of this nature frequently arise.

So extraordinary circumstances should be just that – extraordinary. Volcanoes but not a defective fuel pump.

They Don’t Give Up

The airlines, supported rather strangely by the CAA, have now applied to the Supreme Court for leave to appeal. They lodged the application at the end of July and the SC will make a decision on this some time before Christmas. If they grant permission then we have another year or so of waiting beyond that for a final, final, result. Unfortunately the CA ruling could have been expressed more clearly in places, but on the face of it the ruling should stand. Subject to a possible application to the ECJ again.

And in the meantime many airlines continue to argue all these points, take as long as possible, and do all they can to discourage passengers from making claims, or pursuing claims once made.

The Law – Part Three

All this supposes that it is your flight that is delayed or cancelled because of some extraordinary operational problems. What if it is an earlier one, and you are merely caught up in the backlog. Can you claim, or will you be faced with the extraordinary circumstances defence? Well there’s an easy answer to this one  and it is a resounding “no!” The ECJ ruled in Finnair v Lassooy (2012) that extraordinary circumstances can only apply to the flights that are affected by them, and not to later flights. In that case a strike at Barcelona on 28th July (an extraordinary circumstance) prevented a Finnair flight from leaving, and Mr L was denied boarding two days later on 30th July because they gave his seat to some passenger who had been waiting since the 29th and made him fly 12 hours later. So he got his compensation.

And the Result?

It’s a mess. You can see it several ways:

From the airlines’ point of view the compensation that they are likely to have to pay from the current interpretation is going to make it very difficult if not impossible to operate on their current model of pricing, with very cheap tickets and few aircraft. Only one or two delays can wipe out the profits of several weeks of perfect operations. Surely the EC didn’t mean to do this? Clearly the EC didn’t mean to do this  – the Regulations only deal with cancellation etc, not delays, which were brought in by the court in Sturgeon. So it is worth while paying the lawyers and fighting every claim in order to discourage the others.

From the passenger’s point of view it will take for ever, it is really only peanuts, and life is too short at the end of the day to battle away at this sort of thing. It may have been meant to be dealt with as a small claim but the airline tactics make it very, very hard for a litigant in person.

From a lawyer’s point of view these claims are small claims and so unless you can show that the airline in behaving unreasonably there are no recoverable costs. A client will only pay a little in order to recover €400 even with some interest. So you need lots and lots of clients. If you get 100 on one flight your costs are hardly any greater and a small fee, or cut of the winnings, from each will give you a sensible return.  But passengers rarely exchange contact details unless they’re all in one party, so you have to do things in dribs and drabs, which doesn’t make any financial sense.

And from the court’s point of view a small claim list can be seriously messed up by even one of these surprisingly technical claims, usually with a litigant in person on one side and an airline lawyer on the other, and a very confused DDJ in the middle.

A real mess.  Almost enough to give the EU a bad name.


UPDATE – News of application for appeal to SC on Jet2 here

Can You Assist Me Here? – The Problems with Litigants in Person

There has been quite a lot of fuss, in the legal press and elsewhere, about the proposed increases in the County Court small claims limits, the reductions in scope of both Legal Aid and recoverable legal costs, and the associated increase in the number of litigants who decide to represent themselves – Litigants in Person, or Participants without Lawyers (LIPs).

The current position is that all claims for less than £5,000, or less than £1,000 for personal injury or rental disrepair claims,  are “small claims” in the County Courts.. The significance of this is that the procedure is more straightforward, as you might imagine for the smaller and basically simpler claims. However, because of this, a litigant, Claimant or Defendant, who wins their case, can’t recover the cost of employing a lawyer, apart from some minor costs for issuing the claim, except in exceptional cases. Normally this means that for sensible economic reasons they represent themselves both in preparing the case, and at the hearing itself.

These limits are going up to £10,000 in April this year, with the possibility of a further increase to £15,000 in the future. There are also consultations going on with a view to increasing the PI etc limit to £5,000, although this is by no means certain. To most people a claim involving £10,000, let alone £15,000, is a very long way from being a small claim in their eyes.

As well as this, Legal Aid has been virtually abolished in civil cases, and although you can at present recover the success fee on a no-win no fee agreement (CFA) this is also being restricted in various ways. And lawyers are getting more wary of entering into too many CFAs in these difficult economic times because they are risky, and very bad for the cash-flow. So somebody can have a claim that is over the small claims limit – say £25,000 – and still have to represent themselves.

Now there has been a lot written about this. It has largely concentrated on PI claims and the problems that people without legal training have in trying to get their evidence organised, find suitable expert medical witnesses, assess the value of injuries and so on, against a professional and hard-nosed insurer as Defendant. I’m not a PI lawyer any longer, although I’ve done a lot of it in my time, and I will leave that argument to others. What I will deal with is the problems that arise when cases with one or often two LIPs come on for trial.

The Judge in the Middle

The English legal system is an adversarial one. In other words, the parties fight the case, choose the tactics and evidence, and the judge merely maintains order and picks a winner. This contrasts with the Continental system which is basically inquisitorial. and the judge decides how to investigate the problem that has been put before him by the parties. It applies to criminal and civil cases, although this article is limited to civil disputes.  It is a very basic part of English legal training, and accepted by all lawyers without many questions. Of course, keeping order includes not letting one party behave unfairly to the other by say springing new evidence upon them at the last minute, or devoting vastly excess financial clout in an unfair way. The Civil Procedure Rules (CPR) which govern how civil cases are handled are full of procedures to maintain a level playing field, and to ensure that evidence and legal arguments are put forward in a fair and efficient way, so that the case can, in the normal course of events, be settled on appropriate terms some way before trial, when both parties know the evidence that will be presented, their relative chances, and come to a sensible compromise, saving everybody the significant cost, and risk, of a fought trial.

LIPs don’t generally understand the rules, or the procedure. They often aren’t very good at assessing their chances. They don’t realise that the whole reason that you issue proceeding is normally to compel the other party to come to the negotiating table.They often haven’t gathered the best evidence and so when the other party sees it they don’t recognise its strength. So far more cases involving LIPs, and far, far more involving LIPs on both sides, come to trial.

This causes considerable problems for the trial judge. Not in the truly small claims. If you are arguing over a faulty fridge the procedure is going to be rough and ready, with both sides having their say and a quick decision. But remember, this might involve up to £10,000 as a small claim before very long, and sometimes considerably more in what would normally be a full county court trial, on the fast or even the multi-track. These are trials where the judge and any lawyers appear in robes, witnesses are sworn, and complicated factual disputes, and awkward points of law, are relatively common.

Look at it from the point of view of a judge. I’m not a judge, and I haven’t had any direct input to this piece from any serving judges, but I’ve seen a lot of judging in my time, and you can see the difficulties from miles off.

The first is that, without legal assistance to the parties, the judge will often have a lot of difficulty in working out from the court papers exactly what the dispute is about, what the legal issues are, and hence what important factual points need to be established. The various Statements of Case, such as the Particulars of Claim and the Defence, are meant to draw out the relevant facts and legal arguments on which the various parties rely. The procedure of Disclosure, where the parties show each other all the relevant documents, and the exchange of witness statements long before trial, are all intended to mean that there are no real surprises on the day, and that all that ought to be needed from the judge is a decision on whether they prefer the witness evidence of Smith or of Robinson, and whether they decide the legal point in accordance with authority A v B or with authority C v D. Judges are busy people and only have a short time to look at the papers before a hearing. If the papers don’t set things out clearly there is no time to look up any doubtful points before hand. Especially as there is very little chance that the parties will lodge lists of authorities, or a skeleton argument, or even a clear chronology. The judge will use what little time they have to trying to work out what on earth is going on, and then do their best on the day.

This leads to the next problem: the judge gets very little help from the parties. Now when a judge is trying a case they normally depend to a very large extent on the advocates before them to raise the relevant issues, ask the relevant questions, and come prepared with the relevant arguments. Remember that it as an adversarial system. They haven’t investigated anything. They say things like “please help me Mr Smith?” or “what are the authorities Mr Jones?” or “how do you deal with the sanity clause?” and know that, because the parties are under strict duties of disclosure of documents, and the advocates are under professional duties to deal with all the relevant points of law, whether they assist or harm their clients’ case, they will get a professional answer that they can rely on. Indeed, giving answers that your local judges can rely on is one of the first things that young advocates need to cultivate, or they won’t go far. With a lawyer on only  one side it isn’t  easy. It takes a particular sort of lawyer who will set out their opponent’s legal arguments at their best. With LIPs on both sides the availability of assistance in this way doesn’t exist.

So the judge has to determine what both sides’ cases are, what legal aspects arise, and how they need to be decided. All without help or prior warning.

Whose side am I on?

Most advocates will have met the situation when their opponent, legally but badly represented, fails to put forward some important part of their case. This might be failing to give an important part of their evidence, or to ask essential questions to one of your witnesses, or it might be omitting some key legal argument, or crucial authority.  As the other party is legally represented most opposing advocates take a hard line. It isn’t your job to help the other side out of a hole (unless there is something in it for your client) and you only need to draw the judge’s attention to key authorities, not argue them. So your client gets an unexpected advantage. But this is one of the factors of the adversarial system, and it does mean that your client knows that he has somebody exclusively fighting their corner.

For a judge however it’s a bit more complicated. Their obligation is to do justice between the parties, and although sometimes they take the view that if one lawyer messes up the case the client can claim against them, if the fault is serious enough the judge feels obliged to weigh in. They might ask the party at fault how they propose to deal with the problem, or they might ask the witness some questions themselves, for clarification. They may even suggest that the party consider an adjournment (with penalties in costs) to supply some missing evidence, or to take some formal step that they had failed to take previously.  And they will often argue a point of law with the other advocate. This is usually bad news for the other party because you are exchanging a poor advocate for an extremely good and successful one, who has been good enough to be appointed to the bench, and who, naturally enough, thinks that points the he or she makes are very good. So you have to persuade the judge that they are mistaken, which isn’t easy. Nor indeed, in an adversarial system, very fair on your client. If you lose your client will often think, and say, that the judge was against them, and they didn’t have a fair trial, and sometimes, despite the judge’s best efforts to be impartial, the client is right.

Now the Court of Appeal has said time and time again that judges must be very careful before descending into the arena themselves, and giving the impression, if not the reality, of bias. But they also say that judges are there to achieve justice, and so some intervention is inevitable. Everybody agrees that the problem is an awkward and virtually unsolvable one.

Matters are far worse if one party is unrepresented. Although technically all the procedural rules in the CPR apply equally firmly to unrepresented parties, in practice they are normally treated as guidance rather than matters of obligation. As an opposing lawyer you have to be ridiculously fair to your opponent, warn them of problems they are making for themselves, and can expect little chance of a technical knockout except in the clearest of cases. And you can guarantee that the trial judge will intervene, cross-examine your witnesses with vigor, argue the law with enthusiasm, and generally give you a hard time. If you win then you will know that you certainly deserved to win, and most advocates would prefer to take on a represented party every time.

So the situation with one unrepresented party is difficult. However, with skill from both the opposing lawyer and the judge, plus sense and some intelligence from the LIP, the situation can be managed. It isn’t ideal, but is possible. And in some areas, such as housing possession cases, lack of representation is the norm , and this can be worked into the system, with simplified procedure, advice if not representation at court, and so on.

Silence in Court!

Things change completely when both parties are unrepresented. A very large number of small claims are now between two, or indeed more, parties all representing themselves. And more of the larger cases, that have been allocated to the next grade up in the court system, the Fast Track, involve LIPs as well. These can be quite substantial cases, involving up to £25,000 or even more, heard in ordinary courtrooms, not in the District Judge’s office, and can last up to a day, and not just the hour or two given over to small claims. They are also frequently allocated to Circuit Judges, or deputy Circuit Judges (Recorders) who have far less experience in dealing with LIPs than the District Judges and their deputies who meet them every day. It gives a lot of scope for things to go wrong.

Now I have already mentioned the problems that happen before the hearing starts – the court papers that are meant to set out the parties’ legal positions are often confusing and incomplete, so the judge has little chance of reading his way in to the case in the way that they would normally do. And the parties will not be in a position to guide the judge on what he needs to study, or to summarise what the case is about. But once the hearing does start there are a number of other difficulties.

The first is often just maintaining order and keeping control of the court. In a small claim the hearing will be in the District Judge’s office, round a table, with no court staff present. There are no outside lawyers present to dilute the atmosphere if everybody is an LIP . The judge has the parties, their witnesses and supporters, most of whom have never been in a court before and all will be very nervous.The parties are generally on poor terms with each other before they come in, because otherwise things shouldn’t have got this far. They don’t know the procedure, and are often poor at managing the time needed to present their case. But they are determined to have their say in court and can make up in enthusiasm for what they lack in skill and direction. They can be very hard to handle, and will often not be prepared to accept what the judge says at first saying. Although all judges get training for this, and are indeed chosen for their skill at managing a courtroom, it isn’t easy. There are incidents of violence, and lots of raised voices. It makes it very difficult for the judge to concentrate on the legal points to hand.

The next problem is the taking of evidence. Normally a large part of the case will involve questioning the parties’ witnesses on their statements, sometimes quite vigorously. This is a skill that many LIPs do not have, and the matter is made worse if the statements themselves have not been well drafted. So the judge will have to step in, putting the questions himself. He may have to do this to both sides, or maybe only one, while maintaining an air of complete fairness and impartiality. And all on the hoof, if the court papers have not given enough information to allow him to work up the questions before hand, as an advocate would expect to do. It is far from easy, and makes for some very muddy decisions.

And the third problem is extracting the legal issues and determining them when they have been sprung on the judge without adequate warning, and when the parties can often only have the haziest idea of their legal rights and duties. The judge will often have to argue the legal issues with himself. No judge is an expert on everything, and they certainly don’t keep themselves fully up to date on every subject that might appear before them. They keep some of the standard textbooks on their desk, talk to colleagues and if all else fails reserve their judgment and send it out to the parties after they have had a chance to look things up. It is a possible, but it isn’t a very good way to decide things, and certainly not suited for the more complex cases that are going to be pushed into the unrepresented system.

And the answer is?

There can be no easy answer. This article is intended to point out some of the problems that are largely hidden from professional lawyers. Because every time I appear in court at least one of the parties is legally represented, and the same applies for all my colleagues. We are all used to the conventions, the order of speaking, the deference to the judge, the need to prepare, the “without prejudice” rule  and so on that are a complete mystery to some laymen. It is only when you look behind the scenes, and speak to the judiciary, that the full extent of the problem appears.

It is however clear that we can’t go back to the old days when virtually everybody was legally represented by expensive lawyers at hearings. At the end of the day a system that meant that it cost £10,000 to argue about £5,000 makes no sense. There is also no public appetite to spend the enormous amounts that used to be spent on a Rolls Royce of a Legal Aid system so everybody who couldn’t afford to pay got a subsidised lawyer. Those days have gone for ever.

So what is the answer? It probably lies in the area of a simplified procedure, an increasingly interventionist approach to the management of cases, so they get to court in a better-prepared state, and more assistance from case workers, who are not lawyers but have enough knowledge to help on the day. Or a return to the days when lawyers would take on advocacy only, for a limited and fixed fee. Together with more training for the judges, and a more realistic attitude to listing by the court service. It almost certainly means the end of the adversarial approach to law that has lasted for so many centuries in favour of the inquisitorial approach better known to our continental neighbours, certainly in the smaller sort of cases. I don’t really know – as I said, this article is meant to raise the question, not  provide the answer.

And I understand from my friends who handle family cases that this is an increasingly serious problem there, with both parties engaging in serious custody or financial disputes while representing themselves. That raises further questions that will need different answers.

The powers that be need to address the issue, because it will only get worse as larger cases are handled as small claims, and as more people decide to represent themselves in courts. Those at the head of the legal professions never see this: I doubt if there have been any cases in the Supreme Court where nobody was legally represented, and it must be extremely rare in the Court of Appeal. And of course, all lawyers are lawyers when they are in court. So they don’t see the results.

But they are very real, and somebody ought to think about them. Perhaps you will now.