Helping a client through the stages of going to Court

Article
Amanda Hamilton, CEO of National Association of Licensed Paralegals
Amanda Hamilton

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 cannot be resolved, it may be necessary to go to court.

If such circumstances arise, then depending on whether the case is a criminal or civil matter will guide you as to your next steps. For the purposes of this article, we shall look at a potential civil case.

Civil Cases

Your client could either be bringing the action or be forced to defend an action. In either case you must be aware that as a paralegal practitioner, your actions are limited by what is and what is not permitted for you to do, and these are guided by the ‘Reserved Activities’. In other words, those activities that are reserved for solicitors and barristers only. For example, you cannot ‘conduct litigation’ meaning that you are not able to be an agent of your client and receive service of documents or letters on their behalf, nor can you sign or file court documents on their behalf.

However, what you are able to do is to assist your client as a litigant in person (LIP) and complete forms and draft documents on their behalf, but the client him/herself  must sign and submit them.

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 £10k, 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.

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.

When a claim from is issued, it is done so in triplicate, and 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.

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 £10k and up to £50k 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.

So, to sum up, 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.

Sometimes there is no other choice, for example if your client is forced to defend themselves because of the aggressive nature of the claimant and/or their solicitor and an unwillingness to compromise on their behalf. And, of course, sometimes, it could just be the principle of right or wrong that spurs your client onwards. Whatever the reason, you must be clear with your client about what they are getting themselves into.

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Amanda Hamilton, CEO of National Association of Licensed Paralegals
Amanda Hamilton

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