With cuts to legal aid taking place from 1st April 2013, there will no doubt be a rise in Litigants in Person (LIP’s) and many have identified that the courts may be over run with claims and the judicial process may slow down as a result, thereby causing further costs on the taxpayer in respect of delays in access to justice, which in turn could lead to little or no cost saving for the taxpayer at all. The legal aid cuts include, the withdrawal of the right to access legal aid in number of sectors including: family disputes, housing, debt, clinical negligence, welfare and employment.
However LIP’s must consider the following.
There are usually 2 parties to a claim, a Claimant and a Defendant. On occasion there can be more than one Claimant and more than one Defendant, making cases that little bit more complex. As a result, there will always be a successful party and an unsuccessful party(winner and loser respectively). That is inevitable.
Now that the legal aid cuts have taken place, it makes it increasingly more difficult to find funding to bring a claim or to even defend a claim. But there are hazards in both bringing and defending a claim and LIP’s need to be aware of these hazards and below I intend to highlight a few to allow LIP’s to make an informed choice.
Small Claims Court
In the small claims court it could be said that LIP’s are the rule rather than the exception, but that is not always the case, some claims in the small claims court are litigated by lawyers. However the Civil Procedure Rules have an overriding objective. Within that overriding objective, there are two aspects to note, they are: ‘ensuring that the parties on an equal footing’ and also ‘saving expense’ (Rules here).
This enables the small claims court to adopt a more informal approach (although there are still some formalities that need to be adhered to especially the ‘Small Claims Court Case Management Directions). However when it comes to costs, these are limited and offer some protection to LIP’s who bring a claim, although there are fees that may be payable (Fees) these are limited. It is worth noting that the small Claims court has a financial limit of £10,000 (from 1st Apr 2013)If the value of the claim you wish to bring exceeds this amount it will be litigated on the ‘Fast Track‘(financial limit of £25,000) or Multi Track, this is the general rule, however complex issues under £25,000 may be allocated to the Multi Track.
Fast Tack and Multi Track
When an issue needs to be litigated and the value is above £10,000, costs can generally be applied in the Fast Track and Multi Track. This is generally where they differ from small claims. In small claims, costs are not generally applicable and the general rule is that the loser pays the other parties fees. That is okay, if you win your case, as the other party will be required to pay the court fees you have incurred in bringing the claim(remember to include the fees in your claim). The general rule of loser pays is a predominant feature of the civil courts.
Where the problems lie, is that if a claim is litigated in the Fast Track or Multi Track process, there may well be costs to be applied if the successful party is represented by a Solicitor or Barrister. So, if you lose your case, you may have to pay the other parties costs. These can be substantial in Multi Track Claims.
Advice
If you are a LIP, and you want to bring a claim for more than £10,000 it may well be worthwhile seeking advice in the first instance before bringing a claim. By seeking advice from a Solicitor or even a Direct Access Barrister in the first instance, may provide you with the relevant information on whether your claim has any merit or any real prospect of success. What you think is a strong case, because you feel you have been hard done to, may not be a strong case in terms of what the law says. Additionally, if you are relying upon the court to provide legal advice when you get there, you may find that where you may be assisted with the process, the Judge is unlikely to offer any legal advice as this would not be impartial in the case. Therefore seeking and paying for legal advice in the first instance could save you thousands of ££ in the long run.
If you do not have the funds to pay for the advice to establish if you have a claim, then it may be worthwhile speaking with the CAB or even a local law centre or Law Clinic which offer free legal advice, others for your area can be found here.
If you do find yourself in court acting for yourself and the other party is represented, TALK TO THE LEGAL REPRESENTATIVE! Many issues can be solved at the door of the court, or even long before this, thus saving costs. Don’t lose your house because of stubbornness and thinking you have the strongest possible claim, when you may not understand the legal issues, do not get emotional, put emotions to one side and think logically and with a little bit of common sense and finally, make sure you take opportunities offered to reduce costs.
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