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Flying Solo – Self Represented Litigants clog up the Legal System


Commercial Litigation lawyer Charles Lethbridge explains the importance of retaining experienced legal representation.

Access to justice is about making sure every person is able to have their ‘day in court’ regardless of your circumstances. Unfortunately, the high costs of engaging a lawyer in a litigious matter has put this basic right at risk. This highly specialised area comes at a very high price and many people simply cannot afford to hire a lawyer. There is also the possibility that you will have to pay not only your own costs but those of the other side if you happen to lose the case. Although some lawyers take on cases on a ‘no win n fee’ basis, this usually only applies to personal injury claims or claims for damages against insurance companies or banks. Legal Aid is very limited and does not apply to many areas of law.

Many people have no option financially but to act for themselves in court matters. In many cases this can be very prejudicial to your prospects and it pays to look for alternatives when faced with possible litigation. Please note that any lack of understanding about court and the pre-trial processes more often than not presents a unique challenge to the courts and further, makes it very difficult for the solicitor you engage down the track to right your wrong. You should do whatever you can to get good legal representation, even if this means borrowing money or looking around for the right legal firm who may be able to help you.

The benefits of retaining a lawyer

  1. Lawyers are trained professionals who practice in a specialised field for a living. Too often we hear the words ‘but I thought I had a good case’ or ‘I just have to fill out a form’. A solid case can quickly unravel without the help and expertise of a trained and emotionally detached solicitor.
  2. There are a myriad of rules, procedures and deadlines to be complied with. Unrepresented litigants are less likely to understand and comply with the court procedural requirements.
  3. As a general rule the self represented litigant is unable to claim or recover professional legal costs (that is, costs representing the value of their time) as against the opposing party even if they win their case in circumstances where they would be entitled to an award of indemnity costs if legally represented by a solicitor.
  4. Not having a lawyer may actually cost you more. If you are unsuccessful in your litigation, you may be ordered to pay the other party’s legal costs.
  5. The Courts appreciate the fact you have engaged a lawyer – it shows you respect the legal system and take the matter seriously. Most Judges are ex barristers or solicitors and relate to their own kind.

Anecdotally, the rise in self-representatives continues to climb. Self representation has reached a level in many courts where it is common for at least one of the parties to be unrepresented for one half of the time. For example, the proportion of High Court applications filed by self-represented litigants increased from 25 percent in 1999-2000, to 67 percent in 2007 -2008.

“With legal aid budgets under extreme pressure and the cost of hiring a lawyer out of reach for many, self represented litigants are increasingly common, particularly in the civil and family court systems.”

It’s an interesting thought that when a dispute involves one party who is self-represented and another who is represented by a legal practitioner, this appears to create an unlevel playing field. These sorts of litigants can be very expensive opponents. Experience has shown that a proceeding conducted by a person unskilled in advocacy tends to last longer and as a result, costs more to the other party.

Courts and tribunals have an overriding duty to ensure proceedings are fair and so have a positive duty to give proper assistance to self represented litigants. While unrepresented litigants have a right to represent themselves, that right can lead to disadvantages to themselves and the courts. These types of litigants have a limited understanding and in some aspects, a limited appreciation of the complexities of the litigation process and the dutiful role of the courts.

The role of the court is to maintain its position of neutrality and preserve a fair hearing.

Judicial officers cannot:

  1. Give unrepresented litigants a positive advantage;
  2. Provide legal advice, tips or pointers;
  3. Conduct an unrepresented litigant’s case for them.

While there are plenty of assistance schemes (both paid and free), commercial litigation law can be very complex. Should you find yourself involved in a commercial dispute, it is essential that legal advice is sought at the earliest possible opportunity.

Commercial litigation firms have revealed from proven experience that addressing and managing commercial disputes earlier reduces the escalation of the dispute and is more likely to lead to an environment where a satisfactory, early and commercial resolution can be achieved.

Attwood Marshall Lawyers Head Office is conveniently located in Coolangatta, a short distance from The Local Court of New South Wales (Tweed Heads) and the Queensland Magistrates Court (Coolangatta). Our Commercial Litigation lawyers often appear as Agent on behalf of interstate firms. We also have offices located at Robina Town Centre, Brisbane CBD, Kingscliff, Sydney and Melbourne.

If you would like more information or want to obtain the best possible chance of a successful outcome in your dispute , please contact our Commercial Litigation Department Manager, Amanda Heather on direct line 07 5506 8245, email or free call 1800 621 071.

We have an experienced dedicated Commercial Litigation team that practice exclusively in these areas.

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Charles Lethbridge - Partner - Commercial Litigation

Charles Lethbridge

Commercial Litigation

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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