Do you need a lawyer?

It can't be denied that lawyers - solicitors and barristers - cost money, so can you manage without one? There are a number of guides for those involved in litigation without a lawyer, and if you have no choice but to be a litigant without engaging a lawyer these guides could help, but the danger with many guides aimed at litigants, as the campaigner Fiona Scott Lazareff has pointed out, is that they can give the impression that being a litigant without a lawyer is easier than it is with perhaps the consequence that some people who could afford a lawyer decide to do without but realise too late that they are out of their depth in the legal system as it actually is. (One does not necessarily have to agree with her proposed solution to the problem in order to appreciate that she has put her finger on a potential danger of relying on guides aimed at litigants without a lawyer.)  

Guides designed for those who have no lawyer perhaps understandably concentrate on practical matters such as how to put together a trial bundle, how each page has to be numbered and what index is needed, etc. They cannot say very much about what the law is because the law is complex and cannot be explained in a guide. A guide will not actually say that the law does not matter and that as long as you put together a neat bundle of documents the judge, kindly disposed as all judges are to litigants without a lawyer, will ensure the right outcome. The guide will not actually say that but it is easy for someone using such a guide to come away with that (mistaken) impression. In reality the law and the pleadings are very important.  

Law is a subject which can seem easier than it is. Medicine and science seem complicated because they use a specialist technical vocabulary and appearances are not deceptive - they are indeed complicated. Law is complicated but can seem simple because lawyers use everyday words (e.g. trust, confidence, user, execute) with a particular technical meaning. This can be a trap (not the only trap) for the unwary. 

Usually the loser in legal proceedings has to pay the legal costs of the winner but for some kinds of case the rules provide that each side has to bear most of its own legal costs - win or lose. The idea behind such rules is usually that it is thought that either lawyers are not needed because the matters dealt with are relatively simple, or else that the amount of money at stake is less than the cost of engaging lawyers and it would discourage people from enforcing their rights if, for example, in order to claim £5,000 they had to take the risk of paying say four times that amount in costs if they lost.

The rationale behind such schemes does not, however, always match the reality. People often talk about the Small Claims Court but there is no Small Claims Court. What there is is a Small Claims Track in the County Court. The difference is important. If a claim is started in the County Court for, say, £10,000, it will usually (unless it is a particular kind of claim, such as a personal injury claim, to which a lower small claims limit applies) be allocated to the Small Claims Track and, if it is, that usually means that neither side has to pay costs (beyond some limited costs such as the court fee). However before a claim is allocated to a track, there could be a challenge to the legal validity of the claim - i.e. the Defendant may make an application to 'strike out' the claim saying that the way the claim is worded is invalid. If that happens normally the winner of that application is awarded costs. So someone could make a claim for £10,000 without assistance from a lawyer, thinking that the worst that can happen is that they lose the (relatively modest) court fee and don't recover the £10,000. But if there is a technical defect in the wording of the claim they might end up paying, say £7,500 in costs. 

Costs are not generally awarded in Employment Tribunals. This is because when Industrial Tribunals (as they were then known) were first created in the 1970s employment law was thought to be simple and it was thought that lawyers were unnecessary. But since then employment law has become one of the most complex areas of English law and applicants who are not assisted by a lawyer often have a slim chance of success.

So is it ever safe to do without a lawyer (barrister or solicitor)? I would say not. It is possible to get initial advice from a lawyer - as to whether you have a good legal claim, how the claim should be framed etc. - and then carry on by yourself. I would not recommend carrying on by yourself but, if you have limited funds, getting initial advice from a lawyer and then considering your options is better than trying to deal with matters from the outset without advice. Barristers generally charge a fixed fee for each piece of work they do and you can engage a barrister direct without going through a solicitor. So once you have paid for an Opinion from a barrister there is no obligation to engage them to do further work. There is nothing to prevent solicitors doing fixed-fee work and a few do (solicitors call it 'unbundled' work) but usually the arrangement with solicitors is that you pay them at an hourly rate and the assumption is that they will do all the work that your case requires. Normally with solicitors (subject to any specific agreement otherwise) you can still 'pull the plug' at any time and carry on by yourself but, because solicitors (unlike barristers) do not structure their work in distinct stages, picking up where they left off is not always as straightforward as if you engaged a barrister direct.

Disclaimer

The above explanation of the law is only an overview and in order to be reasonably concise I have had to leave some details out - details which are likely to affect what the law would say about your own situation. So please do not rely on the above but Contact me for advice   

This page was lasted updated in January 2019