By Amanda Hamilton, Patron of National Association of Licensed Paralegals (NALP)
If you find yourself in the position of being taken to court or having to take someone to court, it is important to first consider if going to court is really the best option. There are usually three choices open to you:
- Cow-tow to what is required of you
- Try to find a negotiated, out of court settlement to the dispute
- Fight your corner
The first option may not seem at all fair, but it does require you to have a sense of proportion. Is the issue worth spending time, money, and a lot of effort over? Would it be simpler and kinder to yourself to ‘give in’ and get on with your life? And if not, could you find a way to negotiate your way through, rather than jumping straight to the courts? But if heading to court to ‘fight your corner’ really is the best or only option, then the first step is to understand what you need to do.
You have the choice to be represented by a professional (a solicitor or barrister) or to represent yourself. So, this is the initial decision that needs to be made. Not everyone has enough knowledge of our legal system to go to court unaided, and it also depends on what the dispute is about.
It is not recommended that you fight your corner on your own if there is a criminal law element to the nature of the case. However, if it is a civil dispute (one that does not involve criminal activity) such as an alleged debt, a faulty item bought at a shop or online, or an employment matter, it is every person’s right to represent themselves. In general, it is usually better, if you can afford it, to instruct either solicitor or barrister or both to help you. But if you cannot afford to do this, or do not wish to, then you can represent yourself as a Litigant in Person (LIP).
So, on the basis that you have made the decision to go ahead and represent yourself, the next step is to find out how to go about it.
The first big tip to take on board is that the whole of the civil court process (County Court or High Court) is dictated by The Civil Procedure Rules 1998 (CPR). You can find out how to do everything in the courts by using the CPR as your bible. There is also quite a bit of help on the gov.uk website: https://www.gov.uk/government/organisations/hm-courts-and-tribunals-service
So, if you wish to bring an action against someone, or if another individual is taking action against you, there is help at hand if you wish to be a litigant in person (LIP).
If you are the victim of a potential claim against you, then the other party must write to you with information about why s/he believes you owe money (or whatever the potential claim is) in order to give you an opportunity to respond and (hopefully) settle the dispute before it goes any further. This is what is known as a ‘pre-action protocol’ and is an absolute must.
The letter of claim (as it is known) must express all the facts and evidence of the alleged claim leading up to this point and give the other party a (set and reasonable) period of time to respond and resolve the issues.
Of course, this assumes that the party wishing to take you to court is a reasonable individual. You could get a situation where they are not quite so straight forward and decide that they will take you to court no matter what, without any regard to any pre discussion and completely disregarding what you have to say. Unfortunately, you are then faced with the prospect of court action, which is not what you wanted, but it is outside of your control.
A claim is issued, and according to the CPR you have a set number of days to either acknowledge receipt of the claim and file a defence or admit the claim (or part of it). The worst you can do is to ignore it and do nothing. The courts look upon this as an admission and the claimant can get a county court judgment against you. So, you are forced to defend yourself.
Once you file a defence (which again has to comply with the format laid down by the CPR), the ball starts to roll and the case is now on course for a hearing. The format of such a hearing and where it will take place will depend very much on the nature of the case. There could be various stages to go through such as ‘disclosure of documentation’ where both parties have to send to each other the evidence that they will refer to in order to prove their case. Depending on the nature of the claim there could be a stage where mediation is suggested to try to settle the case prior to the main hearing.
However, it could be a straightforward small claim (such as a debt up to a maximum of £10,000) in which case the hearing will be less formal and be heard in Chambers presided over by a District Judge.
If you are choosing to appear as a LIP, then it is important to understand what to say in court and how to say, so be sure to do your research. Addressing a judge in the appropriate way is always a challenge since different judges are addressed in different ways. For example, in court a senior judge is addressed as My Lord or My Lady, whereas a Circuit Judge is addressed as Your Honour. District Judges are addressed as Judge, and Magistrates as Sir or Madam. Here is a useful site to help you get the this right; https://www.judiciary.uk/guidance-and-resources/what-do-i-call-a-judge/
You may also be allowed to have someone else in court with you to take notes or offer advice – but this person cannot speak for you. This person could be a McKenzie Friend or a paralegal who has been helping you with your case.
When presenting your case, the best advice is to be as clear as you can and to stick to the facts without the temptation to embellish what you say with emotion. This is far more difficult than you think and the judge, or the other party, may intervene if the belief is that you are going off on a tangent.
Judges will always intervene to assist you as a LIP either to give you advice on court process or to guide you about what information you need to impart. This can slow the process considerably, and (as you can imagine) this is not looked on favourably as it is your responsibility to be prepared and understand what is required of you.
The most important tip is to do your research on the civil court process by learning about the stages of a court action as well as the personnel you may come across in court: usher, judge’s clerk etc: and how to address the judge.
It is a huge undertaking to represent yourself and a daunting prospect if you have no assistance. A recommended option is to ask for help from a paralegal who can guide you through the court process. However, they will probably not be able to represent you during the actual court hearing although they could be there for you as moral support. Finally, the very best advice I can give is to think seriously and carefully before deciding to go to court. It will inevitably be a stressful and costly process, and the outcome is never guaranteed.
ABOUT THE AUTHOR
Amanda Hamilton is the Patron of the National Association of Licensed 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.
LinkedIn – https://www.linkedin.com/company/national-association-of-licensed-paralegals/