Kerry Underwood

LITIGANTS IN PERSON: WHY I THINK THEY SHOULD BE BANNED

with 10 comments


This is a 5-minute video on why I say litigants in person should be banned from courts, just as patients are not allowed to operate on themselves in hospital. These videos are meant to be thought-provoking and debate stimulating😊

See my other video logs:

LEGAL SERVICES CONSUMER PANEL: SCRAP ALL THE WATCHDOGS SAYS KERRY UNDERWOOD

FOOTBALL MEETS THE LAW: PART 36 OFFERS IN FOOTBALL

INTEREST ON COSTS

Written by kerryunderwood

August 27, 2020 at 12:05 pm

Posted in Uncategorized

10 Responses

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  1. I am very surprised at this proposal. The case of Benham v UK (https://www.bailii.org/eu/cases/ECHR/1996/22.html This case made it quite unanimously clear that in all serious criminal cases in the UK Legal Aid i.e. giving both help and legal representation should be available as of right ( provided the financial eligibility was there). As we all know legal aid as it was has gradually been 95% withdrawn and no longer exists ; this is in terms of European Law illegal as found in Benham.

    When Government reintroduces full and comprehensive Legal Aid for all those who need it – in both criminal and civil cases – Kerry will not have this irksome problem of people having to represent themselves in litigation.

    berniebrandon

    August 27, 2020 at 4:32 pm

    • Er – that is the point I am making.

      At the 1975 Labour Party Conference I proposed the creation of a National Legal Service free to all.
      I was right then and………..

      Kerry

      kerryunderwood

      August 27, 2020 at 4:37 pm

  2. The main reason I am sure that litigants in person have a go at defending themselves (apart from a misguided display of arrogance) is that litigants in person simply do not have the money to employ proper solicitors.

    As an experienced court attendee (100+) have seen first hand the adage “pay peanuts get monkeys” come true before my eyes. The legal profession is littered with incompetent highly trained academic half wits who have the personality and drive of a butterfly, yes they may know the white book inside out but cannot argue their way out of a paper bag. The judges job is made easier because he hears each sides story from a “professional” and he makes his judgment on what he hears. A litigant in person is protected somewhat by the court and the judge is obliged to assist the litigant in person against an otherwise unfair adversary. I have witnessed many a fine battle between litigate in person and judge v say Michcon… brilliant fun and to mind the judge is paid to use his skill and judgment. If you cannot afford the best it often better to throw your fate into the lap of the judge as employing a new recruit half wit inexperienced barrister is daft and expensive and often leads to disappointment.

    So to me it is easy to see why a member of the public who is scratching every penny together to survey who cannot afford the best decides to ignore the rest. They do not have the ability to know or judge who or who is not any good at the job. It can be a little like a heavy weight boxer being matched against a featherweight; unfair and no fun and generally the outcome is predictable. This is very much what the public is faced with from a legal perspective. Imagine Barclays Bank v Joe Schmow – Barclays employ a competent money no object heavyweight and Joe employs the little firm of family solicitors in the near by village. Joe has little money and employs the best he can afford a lightweight junior. In boxing terms it would be a mismatch and the fight would not be allowed. In legal matters the fight is on, the junior usually takes a beating the heavy comes out victor. The junior doesn’t mind because he has been paid to lose and he has hopefully gained experiance (or this is his job and the norm – but at least he is being paid). Joe is a loser and has dumped his doe and the Judge has no compassion or need to intervene because the mismatch is standard practice.

    So in response to your blog – my view is if you can employ the best ( and you better have deep pockets ) you are often times better to have a go yourself and let the judge do his job. If you have some money like Joe you could employ an open access barrister and let them do a complete job – you may be surprised at what heavyweights you can employ for not a lot of Wong’s 🙂

    Atb JBW

    Jeremy

    August 28, 2020 at 12:23 pm

    • Jeremy

      I agree that most litigants in person are litigants in person because they cannot, or think that they cannot, employ competent lawyers.

      I have mellowed, and so would perhaps not now use the language that you do in the second paragraph of your comment, but I agree with a lot of the sentiments expressed there.

      However, I disagree with the third paragraph. The very people you criticise in the second paragraph are often middle ranking lawyers in very large firms.

      Some of the very best, as well as some of the worst, solicitors are found in very small firms and instructing a large and expensive firm is no guarantee of quality.

      The whole discussion about litigants in person tends to focus on what happens at court, whereas, statistically, virtually all cases settle and it is the knowledge and negotiating ability of a lawyer that is crucial.

      Once the matter gets to court, for the reasons you say, such as the judge ensuring that a litigant in person gets her or his case across etc. it is arguably more a level field than during the negotiation process, when a litigant in person will not generally have knowledge of negotiating tactics such as Part 36 offers etc.

      When I qualified, it was still the law that every firm, without any exceptions whatsoever, had to offer legal aid, and legal aid rates had to be the same as private commercial rates, and the maximum size of any solicitors firm was 20 partners.

      There is a huge amount to be said for all of those things, and to echo what you say, I do think there is a very real risk of small firms being forced out of business and there just being a handful of enormous law firms.

      Thank you very much for your comment and your contribution to the discussion.

      Kerry

      kerryunderwood

      August 31, 2020 at 10:45 am

  3. Hi Kerry,

    I was unable to respond nor open a debate on the above topic. I have had the unfortunate experience of being a litigant in person 22 times over a family matter. The complainant was in a far better financial and in a significant more superior position than I was plus he aggressively refused mediation on at least several occasions.

    I would welcome to discuss and debate your views on this. Because I believe your view is ignorant especially in some particular legal circumstances.

    Lynn

    Lynn Wilson

    August 28, 2020 at 8:52 pm

    • Lynn

      Thank you for your comment. I am not sure why you say that you were unable to respond or open the debate – unless any comment is highly offensive or defamatory, and of course yours is entirely reasonable, sensible and rational I always approve comments and reply to them.

      Please feel free to say whatever you want as a comment and I will happily respond. The whole idea of the blogs, especially the videos, is to get discussion going.

      You state that my view is ignorant. You may well disagree with me, but I think ignorant is the wrong word in the sense that I have been involved in literally thousands of cases, and hundreds of them involving litigants in person, and as an Employment Judge I was frequently trying cases where the parties were litigants in person.

      Overall, I think tribunals should be suitable for litigants in person, and one of the problems with tribunals is that they have become over legalistic.

      You state that you have been a litigant in person 22 times.

      May I ask whether that was by choice, or because you could not afford a competent lawyer?

      Many thanks for taking the time to comment, and please feel free to make further comments.

      Kerry

      kerryunderwood

      August 31, 2020 at 10:49 am

  4. Hi Kerry

    Could you give me an idea of what you would charge (cfa) for a private parking charge claim at County Court? (Small Claims Track….approx £250 being claimed) TIA

    charitynjw

    January 7, 2021 at 1:05 am

  5. In an ideal world it would certainly be preferable to have a solicitor and barrister in harness to present the case of a clamant or defendant rather than have litigants in person fighting it out and clogging up the court system in the process. The family court in particular is a like a scene from a Dickens novel.

    However, it is not an ideal world and we are not living under communism.

    To expect the tax payer to foot the bill of the legal profession so that litigants in persons can slog it out in court at the tax payer’s expense is not sensible and many LIPS could not afford to pay anything on account to a court-appointed legal team even if they were to eventually win their case.So making it compulsory would certainly drive people from the courts and leave them open only to people who can afford to pay.

    The costs of running the court system does not currently fall on the shoulders of LIPS who can show that they have less than £15,000 of savings etc and so they can file claims for totally for free under the banner of ‘Access to Justice’.

    George Robertson

    April 2, 2021 at 5:47 pm


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