Alex McKnight – My experience as a Litigant in Person

 

alex-mcknight-enable-lawOne day last spring I was in my parked car listening to the radio when another car collided with mine. I had my car repaired, sent the other driver the bill, and he ignored me, so I decided to sue him in the small claims court.

As a litigation lawyer, I was happy to do this, but as I went through the process, I started to wonder how people might cope who aren’t litigation lawyers, and who may have cases far more complex than mine.

The government plans to raise the small claims limit from £1,000 to £5,000 for RTA claims and from £1,000 to £2,000 for other claims for personal injuries.

These plans will mean increasing numbers of quite seriously injured claimants representing themselves in court because they cannot afford to hire a lawyer, and there are concerns about how they will cope.

So how did I cope?

The first bit was easy – you do it all online. The court fees (£140) could put people off and I had to think carefully about whether I wanted to spend this money or just cut my losses.

After that, things started to get quite complicated.

Once I had started the claim, the other driver’s insurers appointed a national firm of solicitors to act for him. I know this firm well, but if I was not a lawyer, I might have been intimidated by its involvement – a quick google search confirms masses of partners, hundreds of members of staff, and multiple overseas offices.

In the lead up to the Trial, there was a large amount of paperwork to be prepared, filed, and exchanged, and deadlines to be complied with. This is all quite onerous when you’re doing it at lunchtimes and before and after work. Would a litigant in person decide it’s too difficult or just not worth it?

Also, just before the Trial, the other driver’s lawyers said they wanted an adjournment. There was a veiled threat about costs, which I knew was nonsense, but could easily have been intimidating.

As for the Trial itself, I go to my local court fairly regularly so I am used to the process. The building is familiar to me, as are the security staff, ushers, and some of the judges. As I arrived at court for the final hearing, it occurred me that all this could be quite intimidating to someone who has never been to court.

Once the case was over, I was left wondering: if I had not been a lawyer, would I have put myself through all this, and how would I have coped dealing with all the deadlines and trial preparation? Might I have been intimated by the Defendant’s lawyers into undersettling or, even worse, withdrawing my case?

My claim was only about a little bit of accident damage following a prang in a car park, and this is my job, yet there were points in the process where I thought about giving up.

You can suffer fairly serious injuries within the limits proposed by the government, and yet you are supposed to take your case to trial without expert support. Part of the process may involve instructing medical experts (many of whom will not take work from unrepresented claimants.) What makes it worse is that your opponent is likely to be insured, and thus have access to seemingly unlimited resources. In my case, a very senior barrister turned up to represent the other driver. He was nice to me, but he is probably capable of making mincemeat of opponent’s witnesses at will. How can it be fair to pit a non-lawyer against someone of his skills?

Based on my own experience of being an unrepresented claimant, I am more convinced than ever that the proposed reforms are likely to deter those with good cases coming forward and “seeing it through”, and those who do so are likely to find the process highly stressful and could end up with less damages than they deserve or possibly no damages at all.

Oh, and the outcome of my case? I won, but I can take no credit for my victory – at the last minute, the other driver sensibly decided he was better off going to Benidorm for a fortnight than coming to court!

Alex McKnight is a senior associate in Enable Law’s medical negligence team, and can be reached on 03303 116901 or via alex.mcknight@enablelaw.com