PARALEGAL ASSISTANCE WHEN A CLIENT GOES TO COURT

 

Courts are not unsympathetic to the challenges faced by the litigant in person (LIP), but that does not mean that the courts are minded that LIPs are entitled to special privileges. Therefore, it is a wise strategy for a LIP to seek some form of professional assistance. And options for a first port of call include the paralegal sector, where significantly lower fees are to be found.

However, help from a paralegal practitioner is limited by what is and what is not permitted according to the activities that are reserved for solicitors and barristers only. The six main reserved activities are: the exercise of a right of audience; the conduct of litigation; reserved instrument activities; probate activities; notarial activities; and the administration of oaths.

Paralegals cannot perform these activities, but they can still be an asset in a case being pursued by a LIP client. For example, a paralegal cannot ‘conduct litigation’, meaning that they are not able to be an agent of a client and receive service of documents or letters on their behalf, nor can a paralegal sign or file court documents on a client’s behalf. However, a paralegal can assist their LIP client by completing forms and draft documents on their behalf and by guiding the LIP client through procedures and processes, explaining relevant deadlines and responsibilities, etc.

If you are a Licensed Paralegal Practitioner and you have been assisting a client with their legal matter, but it seems inevitable that the case will go to court, then the steps taken will depend on whether the case is a criminal or civil matter. For the purposes of this article, we shall look at a potential civil case.

The beginnings of a civil case

The first step in a civil action, is to comply with Civil Procedure Rules and this means that the other party (the potential defendant) must be sent a letter describing what the issues are and what is required to resolve them, and to give a date by which this needs to be done. Failing to comply with such resolution or timeline will mean that court action will be taken without further notice. This is known as the ‘pre-action protocol’.

If there is no response, or the matter has not been resolved to the satisfaction of the claimant, then proceedings can be commenced. You need to ensure that your client is fully aware of the consequences of taking this step. Some civil actions take many months (sometimes years) to resolve and can be extremely costly.

On one hand, collecting a debt is one type of case that can be dealt with relatively simply if the debt is not more than £10,000, as this can be heard by a District Judge in chambers rather than in open court. On the other hand, anything with a higher claim or more complexity will be dealt with in open court.

When a claim from is issued, it is done so in triplicate: one is kept by the court, the other is given to the claimant, and the third is sent to the Defendant with a response pack. This requires the defendant to respond within 14 days, either by producing a defence or by acknowledging receipt and stating that a defence will follow. Of course, the defendants may just decide to settle the case at this point, but if a defence is filed, then the ball starts rolling and the costs start to pile up.

When the numbers kick in

At this point, the next stage is very much dependent on what type of case it is. The case will be allocated to a court ‘track’, and this will depend on the subject matter of the case itself. There are three tracks. The first relates to small claims (see earlier). Essentially track allocation depends on the value and complexity of the case and the CPR overriding objective which relates to ‘representation’, ‘fairness’ and ‘proportionate cost’. The other tracks are ’Fast Track’ for claims over £10,000 and up to £50,000 and ‘Multi-Track’ for high claims or complex cases, although sometimes a case could be allocated to the Multi-Track if it is a lower claim amount, but only if it is quite complex. Generally there will be directions that the court will give the parties as to the conduct of the case, and these must be adhered to precisely.

With more complex cases, there may even be a requirement to have a ‘costs budget’ hearing requiring the parties to assess the costs they may incur throughout the court proceedings, and this will include, lawyers’ costs for drafting and attendance at hearings, expert witness costs if required and permitted, and can include the LIP’s own costs in dealing with the matter personally, plus any incidental costs incurred. At such a hearing the judge will decide what may be fair in the circumstances and adjust the draft budget produced by both parties.

Thereafter, the court case will unfold according to the Direction Order of the court which gives precise dates and times when each stage has to be completed.

Knowing when to pass the ball

If you are dealing with a complex case, the question you need to ask yourself as a paralegal practitioner is whether your client needs to instruct a solicitor or a direct access barrister to assist. There are many areas that you can help your client with but sometimes, you may have bitten off more than you can chew. A level of specialised expertise may well be required. Think about whether a barrister could be instructed directly. This may cut out a huge amount of cost for your client, but the downside is, that as a LIP, the client will be receiving all communications from the other side’s solicitors and the court as you are unable to receive these, and this could add extra stress for your client.

The most important thing to remind your client about is whether they are willing to go ahead with court proceedings given the stress, length of time and cost involved. If not, then they must be willing to compromise. Mediation is sometimes a good avenue to explore possible settlements but only if both parties are willing to meet halfway.

ABOUT THE AUTHOR

Amanda Hamilton is Chief Executive of the National Association of Licenced Paralegals (NALP), a non-profit membership body and the only paralegal body that is recognised as an awarding organisation by Ofqual (the regulator of qualifications in England). Through its Centres around the country, accredited and recognised professional paralegal qualifications are offered for those looking for a career as a paralegal professional.

Web: http://www.nationalparalegals.co.uk

Twitter: @NALP_UK

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LinkedIn – https://www.linkedin.com/in/amanda-hamilton-llb-hons-840a6a16/

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