As the Covid-19 lockdown restrictions are easing and lawyers become accustomed to the ‘new normal’, regard should be had to the position of litigants in person. LIPs have naturally not followed the changes in rules and guidance and many of the resources are not easily accessible.
In this bulletin, Nicholas Towers and Rosamund Baker look at the issues that can arise when the opposing party is a LIP, with particular regard to 3 recent cases.
Should you wish to discuss any of these topics, or raise any other queries, do not hesitate to contact either the clerking team (+44 (0)20 7420 9500 or clerks@selbornechambers.co.uk) or any member of Chambers. Please rest assured that Selborne Chambers remains fully operational and very much open for business.
Mark Warwick QC
Overview
Any legal representative dealing with an opposing LIP should ensure that the LIP is able to effectively represent themselves at a hearing. The primary reason for this is that it is the duty of all legal representatives not to take unfair advantage of a LIP. The secondary, but important, reason is that effective LIP representation prevents appeals and delays which may otherwise negatively impact clients. There are 3 areas to consider in this regard: (1) preparation before the hearing; (2) organisation of the hearing; and (3) participation at the hearing.
Preparation before the Hearing
In Frejek v Frejek [2020] EWHC 1181 (Ch), Mr Justice Roth heard a committal application against a defendant LIP during the Covid-19 lockdown. The defendant did not attend the hearing (which was held by Skype) and the Court decided to proceed in his absence, eventually finding the defendant in contempt of court on the grounds of the application. Critical to the decision to proceed was that the defendant LIP had failed to engage with the claimant or the Court since the beginning of proceedings but that the claimant and the Court had still ensured that all the right documents were made available to him. Frejek is, of course, an extreme case but it illustrates a useful point: the Court can be satisfied that it should proceed in even the most serious of cases during the Covid-19 pandemic if the legally represented party can demonstrate that the LIP has had every opportunity to consider the case.
In more usual circumstances, some tips on how to prepare for a hearing with an opposing LIP are:
- if documents are to be in an e-bundle (as currently preferred by the courts), you need to ensure that service by email on the LIP is permitted. It should not be assumed that email service is allowed or even appropriate. Paragraph 4 of Practice Direction 6A provides in what circumstances you can serve by email, being in general where a party has said that you may. If paragraph 4 of PD6A is not satisfied, you will need to consider making an application for alternative service, which, in these times, is likely to be more appropriate than usual.
- if you are serving by email, consider that some older or niche email providers may impose lower limits on the size of emails sent and received than solicitors are used to, requiring bundles to be split up.
- if you are serving by email, you will want to make sure that the LIP can access the link or download the e-bundle. While legal representatives have been utilising new software, it cannot be assumed that the LIP has the same resources. Many online file-sharing platforms require the recipient to sign up for an account. This may present a technical challenge for the LIP and they may be reluctant to hand over their details to a website they may see as being associated with their opponent’s solicitors.
- if necessary, you may still need to serve a hard copy bundle. If so, make sure that the pagination (as well as the contents) of the hard copy bundle and the e-bundle are the same.
- if bundles need to be updated, you will need to consider whether an entirely new file is required or whether the LIP will be able to make additions to any bundle they already have. Again this will be a question of software.
If possible, it is a good idea to confirm these matters at the CMC at which the relevant orders are being made. This will prevent difficulties shortly before a hearing but does require you to have an idea of the possible methods of service at an earlier stage.
Organisation of the Hearing
In Ameyaw v McGoldrick [2020] EWHC 1741 (QB), among other things, Mrs Justice Steyn DBE recounted her decision allowing the hearing to proceed as a hybrid hearing i.e. parties and legal representatives attending court in person with other attendees attending via video link. The claimant LIP had asked for an ‘in person’ hearing due to her concern about conducting a hearing remotely. While the Court thought that a remote hearing could be fair, it acceded to the application because the defendants did not object and because the Court was able to accommodate the request.
While the process of organising hearings has become familiar to legal representatives over recent months, some tips in relation to LIPs are:
- enquire at an early stage as to whether the LIP is satisfied with a remote hearing.
- ensure that the LIP understands how to access the hearing and that they may be able to request a test beforehand.
- consider how the LIP will access both the e-bundle, if there is one, and the video link. Many legal representatives will be using at least 2 screens and thought should be had to the LIP’s facilities.
- accommodate or seek to answer any concerns that the LIP may have about conducting a hearing from their own home.
- if necessary, accede to a request that the hearing be in person. A LIP may be keen for a hearing to proceed in a courtroom as this may be their expectation of litigation. Equally a LIP may wish to remain remote due to health concerns. Legal representatives should be understanding of both stances.
Participation in the Hearing
In Serafin v Malkiewicz [2020] UKSC 23, the Supreme Court ordered a retrial due to the first instance hearing being conducted in a manner unfair to the LIP. In this instance, the unfairness stemmed from the judge’s treatment of the LIP. However, the comments of the Supreme Court are a helpful reminder of the corresponding duties for legal representatives. LIPs cannot be treated as though they were legal representatives and there must be some understanding as to their lay position. Of further interest is the decision again in Ameyaw v McGoldrick that the claimant LIP was not permitted to have her oral submissions delivered by a McKenzie Friend. Mrs Justice Steyn approached that application on the usual principles but with sensitivity to medical issues such as those that Covid-19 can cause.
In respect therefore of the day of the hearing, some tips are:
- be understanding that the LIP may wish to use a McKenzie Friend for technology issues where previously a McKenzie Friend was unnecessary.
- time may be saved when a McKenzie Friend can help the LIP navigate a hard copy or electronic bundle.
- when asked a question during cross-examination, witnesses will often look over to a spouse or associate for confirmation. Care should be taken that third parties, be they McKenzie Friends or otherwise, are not nodding or shaking their heads off-camera.
- it is generally uncommon for parties to storm out of a courtroom, but it is easy for someone to drop off the call due to a lost connection or even click “leave call” in anger, perhaps even during cross-examination. If the LIP does leave a remote hearing, it is unwise to continue in their absence without at least trying to reconnect them, even if the judge suggests such a course.
It is perhaps worth noting that Ameyaw v McGoldrick has prompted three lengthy judgments between the 2nd and 9th of July, including one resulting from the LIP’s argument that the hybrid hearing discussed above meant that it was inappropriate for Mrs Justice Steyn to have given a public judgment. Preparation cannot eliminate the risk of these kinds of extreme responses, but for most cases it can reduce the likelihood of delay and argument substantially.