Advocacy Section

Doing your duty

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The steep increase in litigants in person has thrown up many problems for the legal system, but advocates should be mindful of their obligations to parties representing themselves in court, argues Adam Tear.

With the decrease in civil legal aid, the corresponding rise in litigants in person (LIP) appearing in the courts has been inevitable. An LIP bestows special duties on the advocate representing the other side. There have been several contempt of court cases heard recently involving LIPs, in which legal representation could have been arranged. Sadly, in these cases the courts did not have recourse to guidance from the Court of Appeal, most recently in Inplayer Ltd v Thorogood [2014] EWCA Civ 1511, which requires the court to alert the LIP to their right to a lawyer, no matter what the means or merits of their case are.

Recent contempt of court judgments have highlighted the failure of the prosecuting legal representation to act to the highest standards of advocacy expected

These contempt of court judgments, once analysed under appeal, have highlighted the failure of the prosecuting legal representation to act to the highest standards of advocacy expected where there is an LIP in the proceedings. The prosecution can often be driven by revenge; in a number of cases, there was no actual chance of remedial damage recovery, and seemingly the real purpose of the application was to compensate wounded feelings by hurting the other side.

The advocate is in the exceptionally delicate position of seeking to impugn the determination of a senior judge, who has been led into error by the actions and/or inactions of the complainant

On appeal

The outcome of a finding of failure in legal representation is, more often than not, exceptionally expensive to both the claimant in terms of legal costs thrown away on appeal, and the state, which has to provide legal aid to comply with its article 6 duties. Generally, the defendant in the case only actively seeks representation after they have been sentenced to a significant amount of time in custody, and thus the matters in the case go to appeal to correct the failures in the court below.

This leaves the newly-instructed advocate for the defendant (ie the former LIP), on appeal, in the exceptionally delicate position of seeking to impugn the determination of a (usually) senior judge, who has been led into error by the actions and/or inactions of the complainant. The argument the advocate needs to establish is a finely balanced one that walks the line between making a strong case that there has been an error by the judge, on the one hand, and showing the judge made this error either by their own hand, or because of failings by the defendant’s advocate, on the other. There can be no greater challenge for the advocate than having to establish to a senior judge that other judges have erred in such serious cases.

The Hammerton principles

The starting point for any contempt case is the analysis contained within Hammerton v Hammerton [2007] EWCA Civ 248, and applying the five principles contained within.

1. Article 6 applies in that you must analysis the actions and, more importantly, the inactions against the standards within. 

2. Whilst the majority of contempt cases not in the face of the court (ie attacks on persons within the court) fall within the civil regime, they can potentially result in a custodial sentence, so as such the party must have access to a lawyer

3. Proceedings for contempt are criminal and, as such, the burden and standard applies to the parties having to prove the case.

4. A party to the committal proceedings cannot in any way be required to give evidence, even if this means the civil case must come to an end or be stood out pending the resolution of the contempt issue.

5. If contempt is proven, the sentence to be passed should be punitive, reflecting the gravity of the case and ensuring future compliance where this is relevant.

This analysis should produce a review of the matter under common law principles and, further, article 6.

A fair trial

If you are the advocate representing the other side in an LIP case, whilst your duty is to the court to ensure that the LIP receives a fair hearing, it is also in your client’s interests that the prosecution of a case is, and will always be seen to be, fair, so as to reduce the costs of an exceptionally expensive appeal further down the line. You must apply, and cause the court to apply, the five Hammerton principles above.

On occasion, you may be forced to confront the court about its behaviour, to the detriment of your client

The test for a fair hearing is the same in both criminal and civil cases, although the emphasis has always been that, in criminal cases, a clear and transparent procedure should be followed. However, with the withdrawal of legal aid, greater weight is being placed on the civil courts and tribunals to ensure that parties are able to present their case fairly. The issue of legal aid in exceptional circumstances is being considered by the Court of Appeal, following the High Court hearing in Gudanaviciene v Director of Legal Aid Casework and the Lord Chancellor [2014] EWHC 1840 (Admin). Depending on the outcome, the Court of Appeal may balance out the current unfairness in state-represented civil cases in favour of the claimant.

The civil courts - especially in family hearings - are currently grappling with a reoccurring situation where a party cannot obtain legal aid and is unable present their case fairly. Again, the duty of the advocate, before their duty to their client, is to ensure that proceedings are fairly conducted. If an advocate approaches this subject prior to the matter reaching court, things may be resolved early on. Addressing the matter at the hearing involves potentially staggering costs to the client.

The advocate’s task

As always, an advocate’s task in any hearing is the fine balancing act of prosecuting or defending a case to the fullest extent of the law, but not so forcefully as to make the hearing unfair. Considering what points you would make if acting for the other side is often the best way of preparing a case, regardless of whether they have legal representation. Where an LIP is involved, you need to consider alerting the court to any possible issues, and address in a manner that allows the court to explore each issue fairly.

Considering what points you would make if acting for the other side is often the best way of preparing a case, regardless of whether they have legal representation

This does not mean you should ever raise any weaknesses in your own case and make representations on behalf of the LIP; rather, you must draw the court’s attention to issues it should reasonably consider. On occasion, you may be forced to confront the court about its behaviour - for example, where there is a suggestion that a party should be cross-examined in contempt, you may well argue that there is no power to do so, to the detriment of your client. In doing so, the highest standards of dress and conduct must be adhered to, so that proceedings take place in the proper and sober atmosphere of a court of law.

 

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