11/02/2008

Green Ink and old Olivettis

With my usual and frankly uncanny ability to be a couple of days ahead of the zeitgeist, I posted on litigants-in-person a few days ago, only to see the Guardian do a feature piece on LiPs today. Granted they put a little more effort into it, and actually interviewed people and things like that, but we say pretty much the same things.

In addition, my post is much, much shorter, and so, brevity being not only a virtue but a mark of elegance, I can only pity the poor Guardian having to play catch up by substituting a modicum of effort and research for pith.

The Guardian article is actually quite an interesting piece. It cites a 2005 survey that found many that LiPs considered that:

lawyers were not necessary or not best placed to advance their interests. They saw themselves as more factually expert in their dispute and more able to manage their case than a lawyer – or they just wanted to “have their say”. Less constrained by legal notions of relevance, they could advance arguments or raise issues that a lawyer would not.

But of course, they can’t, because that is not how the Courts work. The result is, as the survey showed, that:

those who handle their own litigation make more mistakes than lawyers do – and more serious mistakes – and that the outcomes of their cases are generally worse than for those who are legally represented.

Nonetheless, their numbers are on the increase, driven by income limits on legal aid. Apparently Family matters have the largest proportion, which should come as no surprise.

There is one quote, from an Appeal Court Judge, that eloquently sums up the view of the LiP at appellate level. Forgive me quoting at length:

There is no sight more depressing than that of a litigant in person, borne down by frustration, anger and plastic bags filled with unsorted paper, staring up at the judge in the expectation of some quietus. What he wants, no court can give: some public acknowledgement and satisfaction for a deeply felt grievance, some release from the anger and misery induced by a resentment growing ever stronger as the years have passed. If only someone had listened and appreciated the hurt early on.

But by the time the litigant in person gets to court it is all too late. The time for listening has passed. The court, often faced with vituperation expressed in green ink or inadequate spacing between the lines typed on an old Olivetti, cannot hear what may have been a genuine cause for complaint because the complaint is lost in the sound and fury, and the litigant won’t listen because no one has been prepared to listen to him in the years gone by.

What is needed is not only understanding but therapy. The courts grapple with the former, but they inevitably fail to provide the latter.

This is unfair to many LiPs, who are doing it because they have to. However, the desperate and hopeless appeal, made in the conviction of the utter rightness of the cause, is the mark of the archetypal LiP, and, going by my visits to the Admin Court office or the Court of Appeal office, there are no shortage of those at present. The real question is why are they always in front of me in the queue?

The CAB at the RCJ is also mentioned in the piece. Given the number of what might be euphemistically described as ‘interesting’ calls we get from people who say that this CAB has ‘referred’ them to us, their daily work must be extraordinary.

Later on, I ended up browsing the list of vexatious litigants at the HMCS site. Now there is a documentary waiting to happen. How about:

ARNOLD, Dorothy Mignon (aka Gracie) who became a vexatious litigant on 17 December 1956

or BEBBINGTON, Ann Marjorie (aka EASTON, Ann Cholmondeley) – 31 January 1969

or O’NEILL, Thomas (aka Lord Charles Leslie Falconer of Thoronton) – 9 June 1998

The idea is going cheap…

Giles Peaker is a solicitor and partner in the Housing and Public Law team at Anthony Gold Solicitors in South London. You can find him on Linkedin and on Twitter. Known as NL round these parts.

5 Comments

  1. lawminx

    Perhaps its not just a question of shrinking legal aid ( which is ,of itself, completely gross hideously inequitable and indeed a key factor in the rise of the LiP) but also of the ability to actually trust lawyers; with respect to family matters, one only has to look at the whole sordid affair of Mr Bruce Hyman to see that many LiPs believe they can get along without lawyers. Of course, you and I know that he is but a fly in the ointment, but does the public at large appreciate that? When was the last time the Bar Council and Law Society went on a charm offensive with the public, thereby helping them to see that the vast majority of us really aren’t as bad as we seem?

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  2. lawminx

    … DAMN! Have just been to the HMCS through your link and I’m STAGGERED at the number of vexatious litigants!!!!! ):-0 !!

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  3. contact

    Minx, I’m sure that you are right and that this is a factor. That said, the die-hard LiP tends to consider lawyers as untrustworthy because lawyers are always telling them they can’t do what they want (claim for X, witness summons Y, appeal Z) and will insist on remaining inside the realm of legal possibility.

    I was actually surprised at how few vexatious litigants there were, particularly when you consider how far back that list goes. It takes an awful lot to be classified as vexatious, it really does.

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  4. BETTY

    Well well….at last a discussion on us litigants in person. I have attended a huge number of hearings in the last five years following the tragic death of my son’s father, as a result of a botched hospital scan. Hitherto a healthy man with what was thought was anaemia, he agreed to a sudden cancellation for an endoscope scan to check it out 2 days before his beloved Arsenal played in the FA Cup in Cardiff. He arranged cover for his 95 year old mother of whom he had chosen to be the main carer in what he thought would be the last years of her life. He swung by to watch my younger son play soccer in the park. We had a drink. He refused food because of the scan the next day, and I had a bad feeling then. But he left happily looking forward to being collected by his mate over the weekend for the Cardiff FA Cup final and a weekend off the care of his Mum.

    The next thing I heard was that he was fighting for his life on a life support machine. He had cancelled the match in the night after ringing his friend and complaining of terrible pain. He was found coughing up blood in the morning and rushed into intensive care. It turned out three days later when they FINALLY told us, that his bowel was perforated by the endoscope needle, causing peritonitis, septicaemia and eventually multi-organ failure. But that was not the worst. They could have saved him, but carried out inadequate and what amounted to negligent procedures on him once they discovered that he had major sepsis and that the clock was ticking, and they took four days and finally a proper stomach surgeon, to diagnose the perforation by which time it was too late. Four operations later, and two infections, if that wasn’t bad enough, the kidney dialysis machine broke on the night he died of cardiac arrest.

    I of course even though he was an integral part of our a family and family life and income, could NOT make a claim because we no longer lived together. We were what you call LATS.(Living apart together).My son’s claim and subsequent litigation revealed blunder after blunder and insult after insult. Wrong scan, typo error, and wrong diagnosis, no x ray offered though he was doubled up in pain, and the list goes on and on.

    Within weeks of his death it was like a horror film of disasters. His mum died of a broken heart unsurprisingly. My mother had died a month before he died. My 14 year old son, displaying signs of post-traumatic stress syndrome, was disgracefully kicked unceremoniously out of his school. As he had been a major and integral part of my burgeoning small business his loss, coupled with dealing with three bereaved children (two younger stepchildren), as well complying with litigation issues on medical negligence just had a huge knock on effect resulting in repossession hearing after repossession hearing. I had debt hearing after debt hearing. Then I was doing school appeals. After running out of money on expensive lawyers for the repossession hearings I started to attend on my own. Litigation became a part of my life. But it was always a worry. Always a stress. Always a risk. I prayed I would have a good judge. Mostly they were.

    Concurrently, though it was difficult dealing with the demands of the case and all its deadline, in fact alongside the weekly and monthly litigation crises in all the other areas of my life, I struggled on. Regarding the med neg case for which I had perfectly good no-win no fee lawyer we e were told the liability issue was good. (By this time I had ordered an independent pathologists report intending to litigate against the hospital who has a frankly lousy record of care). Eventually, though I was not the best client, after a derisory offer and no admission of liability, my son refused the award and we were duly dropped (no won no fee is a complex conflict of interest and frankly I believe a bit of a con…..But where does anyone without legal aid go????)
    I got ‘released’ (or dumped) by our solicitors. But more… When they came off the listb the court clerk had the foresight to disclose all the files mistakenly to the other side. Everything, offered details, advice…the lot. So not only am I a litigant in person but a litigant in person with a case that is strongly disadvantaged by the oppositions sighting of privileged information. It’s akin to having your house bugged. Yet there was nothing I could do about it. Despite strong requests by my former solicitors, including the partners to do the decent thing and come off the court lists, the other side resolutely refused, saying it made no difference. Despite a plea from ex solicitor to judge with evidence of dodgy correspondence, nothing could still be done. In the end I made an application to have them removed and guess what? I lost! Surprised? And not only did I lose but I have to pay £1000 costs to the other side for the privilege of having the court hand my papers over to the other side. What did the judge surmise? That it is most unfortunate but most sides know what the other is doing and there was nothing that could be done about it. When I asked if I could see the correspondence between them and their client the hospital, to see if as they suggested in a letter, reading my files did not change their advice to their client I was told promptly ‘no’, Because “two wrongs apparently don’t make a right.” Then when I said if everyone pretty much knows what everyone’s case is –why do we have rules and can’t we just then see all of each others information? To which the judge had no answer and visibly squirmed, almost apologetically.

    But guess what? As a litigant in person you are lucky enough to be advised by the other side about all sorts of issues including why you shouldn’t need to continue an appeal about expert pathologist evidence they have managed somehow to get chucked out on a technicality. And now I have TWO major and costly issues to fight and we aren’t even at trial yet.

    So here I am naked, with a bugged house, with no medical negligence knowledge and even less nouse, and, with disclosure from the other side against me, vulnerable and bereft of bargaining power to negotiate the original offer, Is it easy to be paranoid? Yes. Is it easy to believe in conspiracy theories about judges and court clerks being in the pocket of certain law firms? Yes. Especially when a court misdirects your papers into your enemies hand, every judge turns down your applications, and every date is moved swiftly forward forcing you to deal incompetently with complex medical issues that you cannot possibly get your brain around in a few weeks! But wisdom has to prevail and you have to believe that there is some sense and sensibility out there, and some good and decency does exist.

    Do I WANT to be a litigant in person? No. But I have sent my papers to no less than seven lawyers who purport to be fast, fair, and humanitarian. And each one turns me down. Because golden rule. Don’t expect any decent lawyer to represent you after you have refused a no win no fee offer! And don’t expect any decent lawyer to represent you after you have left or been dumped by another lawyer. Have I lost my faith in the profession? Almost but not quite. I watch them with their calculators assessing risk and wonder whether they should be in the city. Maybe I have watched ‘To kill a mockingbird ‘ too many times! Or Twelve Angry men. Or maybe I just hope that somehow, somewhere there is a thing called justice that will prevail.

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  5. contact

    Betty,

    I’m sorry for the tragic events and their effect on the life of you and your family. But I do have to point out a couple of things.

    Firstly, that the issues with legal aid funding are not dissimilar to no win no fee in that if what, on advice, is said to be a reasonable offer of settlement is refused by the client, legal aid funding will be withdrawn by the Legal Services Commission. This is for the reason that to press on would involve much more expenditure with a considerable risk of not getting it back from the other party if the Court doesn’t make a higher award at trial.

    The second thing is that, I my limited experience, pre-trial settlements will almost never include an express admission of liability.

    Third, I am very surprised that the Court had the documents you mention in its possession to accidentally pass to the other party. Unless it was part of the solicitor’s application to come off the record, I can see no reason for the court to even have those documents. Certainly a very bad error on the part of the Court office. But I would have thought the other side would have a pretty shrewd idea of what was going on anyway when your solicitors came off the record.

    As for judges and court clerks being ‘in the pocket’ of certain firms? No. Really not so.

    Otherwise, given that I don’t practice in or know much about clinical negligence claims, I can only wish you luck.

    Reply

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