Under proposed changes to the court rules, represented parties are to help their opponents out.
It is very common that parties involved in small claims litigation do not have legal representation, whether by a solicitor or barrister. This is because it is usually very unlikely that either party will be able to recover solicitor or barrister costs, regardless of who wins and who loses.
The Judges have a more difficult task in handling claims with unrepresented parties, to try to deal with claims fairly but also seek to enforce compliance with the court rules.
The court rules are contained in the ‘Civil Procedure Rules’. The Ministry of Justice has announced that it intends to update the rules so that parties who are legally represented, need to co-operate with unrepresented opponents. Having read the proposals, we consider they go much further than co-operation and would better be described as assistance.
It is likely that in small claims, the rule changes will not come into play a great deal, as usually there will only be one hearing (the trial) and everything else before the trial will be on paper.
However, it shows a shift in the court expecting the parties to help one another to ensure a matter is ready to be dealt with at trial.
The Ministry of Justice is proposing that:
- Represented parties should give an unrepresented party, an informal record of proceedings, pending an official transcript. Therefore, if a barrister represents a client at trial against someone who is unrepresented, the barrister is expected to prepare and give the unrepresented party (who is not his client) an informal note of the hearing. That is problematic, as it potentially creates a duty of care between the barrister and opponent, in relation to the accuracy of the note and how quickly it is delivered. It also creates the problem of cost – are represented parties going to be prepared to pay their barrister to produce a note for the benefit of the opponent? There is also the risk that the barrister’s client will object to certain points in the note being provided to the opponent and barristers will need to be very careful not to include notes that contain confidential information or advice to their client.
- So in the context of small claims, if one party instructs a barrister at trial, the barrister is likely to be required to give the other party a note of the hearing, in case the other party intends to appeal the decision.
- Parties need to copy in the other side when communicating with the court. This is common practice already but in some cases, tipping another party off about an issue, can be damaging to a case. It also encourages the court to be deluged with emails back and forth between the parties.
It strikes us that the large number of litigants in person is causing distress to the Judges, with unrepresented parties not being familiar with procedure and failing to be prepared on time, creating problems and delay for Judges dealing with claims. Putting the burden on represented parties to keep their opponents informed, is an attempt to pass the buck from the courts.