When dealing with a Litigant in person (LIP) there are four major personas to look out for. At the recent Bar Association of Queensland Annual Conference, Bernard Porter, QC spoke on the topic of Advocacy and the Litigant in Person. He outlined the legal and practical issues that arise for advocates when the opponent is a LIP.
We take a look at the most common LIP profiles that you may encounter:
- The ‘querulous’ litigant or ‘vexatious’ litigant, who is obsessed with a particular issue or grievance. They will pay no attention to any judgement contrary to their set views, but otherwise can be pleasant to deal with.
- More common is the querulous litigant driven by a personal grievance, real or imagined. The obsessive grievance often emerges from the failure of some grand financial scheme or the loss of face as a result of failed financial dealings.. This kind of LIP has to be treated with particular caution by the advocate, both outside Court and before the Court.
- A further category is the misguided or misled LIP who is a person who has obtained informal advice, usually from persons without legal qualifications, who assure them that they have a defence to a particular kind of claim (frequently tax claims or claims relating to mortgage securities and money lending). These defences are usually based on some obscure and wrong point of law, though to the hopeful and untrained litigant they look impressive.
- Finally, many LIPS are people who simply cannot afford legal representation or for whom the risk posed by the litigation does not justify the cost of legal representation.
There are a number of ethical rules which acquire particular importance when dealing with an LIP. Rule 28 Barristers’ Conduct Rules 2011 (the Rules) provides:
A barrister must alert the opponent and if necessary inform the court if any
express concession made in the course of a trial in civil proceedings by the
opponent about evidence, case-law or legislation is to the knowledge of
the barrister contrary to the true position and is believed by the barrister to
have been made by mistake.
This rule is particularly significant when the opponent is a LIP. A certain amount of additional vigilance is required, to ensure that the barrister fulfills their duty and ensures there is no good basis for an appeal.
Porter advised that for an advocate in matters with a LIP must in most cases is to be fair, almost to a fault, in pointing out both sides of any reasonable argument which can be discerned in the LIP’s material. Judges also may have a difficult time with LIPs and the best strategy for enduring success is usually to make an effort to assist and reassure, while fairly putting your own client’s case.
Rule 44 of the Rules is also relevant when dealing with a LIP. It provides:
A barrister must not confer with or deal directly with any party who is
unrepresented unless the party has signified a willingness to that course.
Negotiating with a LIP
The steps outlined above precludes discussions between counsel and the LIP without the LIP’s consent. It is useful to have discussions with the LIP opponent before Court and almost impossible properly to prepare for a hearing without doing so. The Court will expect you to do so, to try and smooth the way.Practical issues also outlined how it is beneficial to introduce yourself, clearly identifying yourself as counsel and the party you represent, and asking if you may speak to the person. You should also always have your solicitor present. Some LIPs will refuse. If they do, respect that refusal and let the matter play out in Court. At least you can inform the Court that you have tried to discuss matters if the issue comes up.
Practical issues also outlined how it is beneficial to introduce yourself, clearly identifying yourself as counsel and the party you represent, and asking if you may speak to the person. You should also always have your solicitor present. Some LIPs will refuse. If they do, respect that refusal and let the matter play out in Court. At least you can inform the Court that you have tried to discuss matters if the issue comes up.
Duty of the Court
The Court’s duty when conducting a proceeding involving an LIP has been the subject of numerous cases in intermediate Courts of Appeal and in the High Court. It is generally recognised in the authorities as comprising a duty to ensure a fair trial, despite the shortcomings of the LIP. The formulation of this ‘duty to assist’, varies from case to case. There is clear authority for Judges to explain procedural matters to a LIP. Beyond that it will depend on the circumstances of the case.
Porter described this as a very delicate balancing act. A trial judge needs to ensure a fair trial and must do this by assisting the LIP sufficiently, but not too much, such that the trial is as fair as possible while not unduly disadvantaging the represented party and avoiding the impression that the Court is not impartial.