Recent and proposed cuts to legal aid are likely to force more and more people to represent themselves in court without lawyers. It is a daunting prospect as I know from personal experience.
During my career I have generally shared the profession’s somewhat disdainful attitude towards those who have dispensed with the services of solicitors and counsel and conducted litigation on their own. I have groaned with the ushers and sighed with the judges as litigants in person have tried to extricate themselves from personal and financial catastrophe without the assistance of lawyers. Then I have retreated to the robing room to chuckle over their absurd mistakes. The sort that we would never make ourselves.
Whether he is a gravy-stained obsessive driven mad by a quest to redress the wrongs of the last court hearing but three, a bankrupt businessman, or even the defendant who appears regularly at Southampton Crown Court claiming to be God and therefore beyond the jurisdiction of the Eastleigh Petty Sessional Division, there is one inexorable rule about the litigant in person: he loses.
I have watched with grim satisfaction as each one spirals to ever more comprehensive ruin. It has been grim because an individual’s slow suffocation by the peine forte et dure of the legal system is not a pleasant sight. But I have been satisfied because I have usually been on the other side.
Any competent lawyer advises his clients that there are three keys to successful litigation:
- Do not litigate.
- Do not litigate against your neighbours.
- Do not become a litigant in person.
So it was with a feeling of considerable embarrassment that a few years ago I found myself in the unfortunate position of appearing in court, not as counsel but as a litigant.
The dispute was with our neighbours and I was representing myself in the unfamiliar world of the county court.
The original cause of our dispute was the cost of eliminating dry rot from our common house. Unpleasant and time-consuming though this had been, it had concluded, long before any trial, in what appeared to be a draw. It was expensive but not ruinous and at least we had a bone dry, fungus-free house show for our money.
Unfortunately this proved to be only the beginning. Because we had conceded some of our neighbours’ demands, their solicitors then insisted that we meet their legal costs in full. Needless to say, the costs they claimed amounted to roughly double the amount that had been in dispute in the first place. A hearing before a district judge established that they were indeed entitled to make us pay their “reasonable” costs and a further hearing was convened to ascertain what sum was in fact reasonable.
This was to be what is known as a “detailed assessment” of their costs. The idea is that a costs judge will look at the solicitors’ bill and go through it with a sceptical eye, ruling some parts reasonable and other parts unreasonable.
Our opponents were represented by neither solicitor nor counsel but by a member of a little known sub-species of the legal profession known as a “law costs draftsman”. All lawyers are of course parasites, but none quite as nakedly so as the law costs draftsman. Whilst solicitors and barristers can argue, sometimes plausibly, that they are on the side of the underprivileged, or at least of “justice” in some general sense, the law costs draftsman is protected by no such veneer of respectability. His sole reason for existence is to extract the maximum amount of money from his victims. He is employed by solicitors to draft their bills and then to argue that the bill he has drafted is reasonable. To my – admittedly rather jaundiced – eye the particular example opposing us certainly did not appear to have even tried to look respectable. Red faced and wheezy, in a hounds-tooth tweed with a fat pink tie he looked like a cross between a rat-catcher and a bookmaker. Evidently charm was not the main weapon in his armoury. I will call him Mr Harper.
I felt awkward. Should I behave as a barrister, make “respectful submissions” and refer to Mr Harper, with more than usual insincerity, as “my friend”? Or would this be seen as an unworthy device since I was not in fact appearing as a barrister at all? In the end I decided upon an awkward compromise. I was more polite than I felt like or than Mr Harper deserved, but I did not pretend to be his friend.
The hearing opened with a promising preliminary salvo from the judge. Mr Harper had claimed that we should pay the other side’s solicitors’ costs at what was then the astronomical rate of £225 per hour (plus VAT, of course). The judge pointed out that the solicitors had charged their own clients a “mere” £150 per hour, so it was a little unreasonable to demand that we pay them 50% more than that. Mr Harper showed that he could splutter as well as wheeze before conceding defeat gracelessly. He continued otherwise quite unabashed.
The day wore on and argument ranged over a series of letters here and a long telephone call there. Was it reasonable that a partner should charge £150 per hour (plus VAT of course) for operating the fax machine for 10 minutes? Indeed it was. Could he really justify a 15 minute telephone call costing £75? Mr Harper would not concede so much as a minute. Before long it became clear that our opponent’s ruddy face and wheezy chest belied an astonishing stamina and relish for getting down and dirty amongst the details.
By the end of the allotted day there were still plenty of issues remaining, but our opponent had a trump card to play. If we continued to quibble over every detail, the court would be adjourned and we would have to come back another day. If that happened his own fee would increase by another thousand pounds or so, to say nothing of the fees of the partner in the solicitors firm who came along to watch.
The largest bundle of correspondence lay still unopened on the judge’s desk. Miserably I acceded to the weary judge’s exasperated and unorthodox approach to detailed assessment. He took out a ruler, measured the correspondence bundle and found it to be seven inches thick. In his judgement this was two inches thicker than was reasonable. We must pay for five inches. Plus VAT, of course. At about £2,000 per inch this worked out at about £10,000.
So do remember the three rules of litigation:
1. Do not litigate.
2. Do not litigate against your neighbours.
3. Do not become a litigant in person.
2 thoughts on “Representing yourself in court: horrible even for a barrister”
Well I came here correct some dirt on Lord Blacker, but ended up reading an amusing vignette about courtroom procedure. Safe.
And don’t lawyers love reading about the case where the litigant in person won?
Forty years ago I was in articles in a City firm. One of our regular counsel (long dead so I can name him) was a certain Brian Davenport, later a Law Commissioner, then one of the standing counsel to the Revenue on CGT cases.
And one day there was a report in The Times of a case where he had been against a taxpayer, a sole trader on a High Street somewhere, on one of those ghastly points of tax law which make your brain hurt even if you practice in the field – and the taxpayer was in person – and he won.
The next day my principal and I had a conference with him on a shipping case; something to do with the law of demurrage. And as we got up to go my principal, a sarcastic type with a rasping Ulster accent, said “We’ll be all right this time, Brian, the other side have counsel”.