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Defending a case brought by a lay litigant

  • Ireland
  • General

31-03-2014

Defending cases brought by lay litigants can pose significant challenges for any Defendant. Courts tend to give lay litigants considerable latitude. This can sometimes give rise to the perception that lay litigants are ‘playing by different rules’. It is worth bearing in mind that the Judge is challenged with the difficult task of balancing the rights of a lay individual to access justice against the rights of both parties to a fair trial.

‘Assisting’ a lay litigant in relation to procedural matters is looked upon favourably by the Courts, as it may reduce Court time and help to expedite matters. Any assistance should be confined to procedural matters and always in writing to avoid any misunderstanding. This also enables any correspondence to be shown to the Judge if necessary. Drawing the lay litigant’s attention to procedural irregularities from the outset can prevent them claiming ‘they did not understand’ the legal procedures involved at a later date. This removes the ‘ignorance of law’ argument that is often used by lay litigants to great effect. All verbal
dealings with lay litigants should be followed up in writing where possible.

The usual rule that ‘costs follow the event’ (i.e. the party that loses the action must pay the costs of both/all parties) tends not, in practice, to apply to lay litigants. This can be particularly frustrating for a Defendant who has incurred significant costs defending a claim and is left footing their own bill of costs even when they are successful in the case. It can be challenging to settle a case with a lay litigant.
They may feel that they have little incentive to avoid escalating legal costs as they are self-represented. Some lay litigants are determined to have their ‘day in Court’ and feel that justice will only be available by a Court hearing and judgment. Furthermore, it can be difficult for a lay litigant to be objective in relation to the value of their claim at any settlement discussions. Lay litigants may not understand the concept of ‘without prejudice’ discussions and may later seek to rely on without prejudice communications in Court. When communicating with a lay litigant, it is advisable for a Defendant to proceed on the basis that the lay litigant may refer to all and any communications before the Judge.

In practice, lay litigants are often granted adjournments by the Court that may otherwise not be allowed. This can prolong matters for a Defendant. Rather than opposing adjournments outright, it can be helpful instead to set out the terms of a proposed adjournment to encourage case progression. It can be helpful to set out the history of all case events, as well as expenses incurred by the Defendant, in order to resist further applications to adjourn. Bringing a motion to dismiss against a lay litigant is unlikely to succeed.
Lay litigants should always be encouraged to seek legal representation for the benefit of themselves, the party on the other side and the Court.

Disclaimer

This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full terms and conditions on our website.

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