When a Licensed Paralegal Practitioner has been assisting a client with their legal matter, there are times when seems inevitable that the case cannot be resolved. It may become necessary to go to court.
If such circumstances arise, and it is a civil matter, here is how a paralegal can help.
The client could either be bringing the action or be forced to defend an action. In either case the paralegal must be aware that, as a paralegal practitioner, their actions are limited by what is and what is not permitted for them to do. These are guided by the ‘Reserved Activities’ (you can find more about Reserved Activities here). In other words, those activities that are reserved for solicitors and barristers only. For example, a Paralegal cannot ‘conduct litigation’ meaning that they are not able to be an agent of their client and receive service of documents or letters on their behalf, nor can the paralegal sign or file court documents on the client’s behalf.
However, what a paralegal is able to do is to assist their 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. 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 They must also be given 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. A paralegal needs to ensure that their 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. 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 this is a complex case, the question a paralegal practitioner is whether their client needs to instruct a solicitor or a direct access barrister to assist. There are many areas that they can help their client with but sometimes, they may have bitten off more than you can chew. A level of specialised expertise may well be required. They should think about whether a barrister could be instructed directly. This may cut out a huge amount of cost for their client. The downside is, that as a LIP, the client will be receiving all communications from the other side’s solicitors and the court rather than it going to the Paralegal. This could add extra stress for their client, so ways to dealing with this need to be addressed.
What happens next?
When a claim from is issued, it is done so in triplicate:
- One is kept by the court
- One is given to the claimant
- 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.
Three tracks the claim can follow
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:
1. Small Claims
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’.
2. Fast Track
The other tracks are ’Fast Track’ for claims over £10k and up to £50k.
These are 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. Costs will include:
- Lawyers’ costs for drafting and attendance at hearings
- Expert witness costs if required and permitted
- Can include the LIP’s own costs in dealing with the matter personally
- 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 for a Paralegal to discuss with their client 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 their 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 the client onwards. Whatever the reason, the Paralegal must be clear with their client about what they are getting themselves into.