Do opposing solicitors have to help litigants in person?

In a recent case, a judge has confirmed that it is not up to one side in a claim to point out any errors which the other may have made.

In the case in question, a firm of solicitors failed to serve claim form upon another firm of solicitors, within the time limits for doing so. An argument was raised that this should have been flagged up by the solicitors who hadn't received the claim form. However this was robustly rejected by the judge.

This case has particular implications for litigants in person, that is, people who deal with their own claims in court rather than instructing solicitors. Without any legal training, it is quite possible but litigants in person could unwittingly make mistakes that could harm or even destroy their prospects of success. This recent decision suggests that even if there are solicitors acting on the other side, they would have no duty to advise the litigant in person about any errors they had made.

However, this has to be balanced against the solicitors' duty to the court, to ensure that litigation runs smoothly. In those cases, the solicitor who sits back and allows a claim to run into all sorts of procedural issues which waste the court's time, could find themselves open to criticism. 

Judith Thompson, litigation partner at Samuels solicitors in Devon, says: "this decision may seem very harsh, but the judge considered arguments that unfair advantage was taken of a simple mistake, and rejected that proposition. Essentially, the judge found that if someone makes an error, that is their own problem. This case highlights how important it is to take expert legal advice, at the very least on how a claim ought to be dealt with procedurally, at an early stage."

In the case discussed above, as there were solicitors acting for the party who failed to serve the claim form properly, it would almost certainly have been possible for their client to bring a claim for professional negligence against them and so all may not have been lost, but clearly a litigant in person would not have that option. 

Samuels Solicitors has a wealth of experience assisting clients with litigation matters. We help clients with all aspects of claims, from advising on procedural steps that need to be taken, as well as going on the court's record and handling the whole case through to trial.

Contact us today for no obligation discussion about how we can help you with your claim.