Sherlock Holmes or the ‘Mound of the Hound of the Baskervilles’?

Litigation is expensive and there is no getting around it. There is no legal aid available for inheritance disputes. Where a party is all but guaranteed to receive something and where we judge there to be good prospects of success, we can sometimes offer our clients deferred invoicing with a small uplift at the end. There is also litigation funding available in certain circumstances and some firms have constructed business models based on ‘no-win, no-fee’ arrangements, high volume and equally high success fees on the assumption that many cases will fail. This is not a funding model we subscribe to at IDR Law (although it is becoming more attractive to many firms in respect of 1975 Act claims due to recent case law), but it does illustrate what options are potentially available. Whatever your business model might be, no firm carrying out contentious probate work is likely to take on a case without at least one or a combination of the following being apparent:

  • Objective, good prospects of success;

 

  • An estate that is large enough for it to be commercially viable to litigate; and/or

 

  • Where the prospective client is already receiving some inheritance.

 

One might sensibly conclude that if none of the above applies to a case, then engaging in litigation is going to come at considerable risk, both commercially and legally. However, some people will rightly or wrongly believe that they have a duty or a moral obligation to proceed without legal representation, irrespective of the risks. And even where some people can obtain legal representation, they might deem it either unnecessary or too costly. In all these cases, the end result is a ‘Litigant in Person.’

The law must be open to everyone and it is difficult to see how it could ever be just or viable to enforce a bar to engaging with the legal system without representation. This could only be done with some form of universal legal aid, which is extremely unlikely to be on the table for many years, if ever.

Litigants in person are here to stay and the recent case of Face v Cunningham & Anor provides some interesting reading. It is worth quoting from the beginning of the judgement:

“If the late Sir Arthur Conan Doyle, or his worthy modern-day successor Mr Anthony Horowitz, were to write up the events which have led to this present, unhappy litigation, they would no doubt have titled the resulting chronicle “The Case of the Missing Will.” Sadly, this is the fourth significant contested probate claim involving one or more self-representing warring siblings upon which I have had to adjudicate in the Business and Property Courts in Liverpool within the space of the last two years.”

Along with being a fantastic opening, it is symptomatic of a growing frustration with both the prevalence of litigants in persons within contested probate claims, and with the issues which this can cause. The judgement makes reference to 12 previous interim court orders having been made prior to Trial. This is not only excessive, but completely disproportionate and, in my view, is highly likely to be at least partially the result of parties not receiving proper legal advice. Amongst other procedural criticisms, the Judge also comments on late disclosure and how the bundles, of which there appears to have been 19, were a “complete nightmare” to navigate. On the substance of the litigation, which came down to the reliability and credibility of witness evidence, the Judge found the key witnesses for the claimant to be “inherently incredible, and I am sure that it is pure fiction.”

I have deliberately avoided delving into the substance of the dispute as, for the purposes of this article, it is not my focus. It is of note, however, that the claimant’s claim to propound in favour of a copy will failed. The claimant was a litigant in person and the Judge found that her claim was “totally without merit,” being sure to include a specific recording on the point. In respect of the claimant’s conduct, the Judge had no difficulty in awarding costs against the claimant on the indemnity basis. This perhaps goes against the anecdotal complaints often made by solicitors that litigants in person often get let off.

The case of Face v Cunningham & Anor is a reminder of how important legal representation is to achieving a well-managed and proportionate resolution to any inheritance dispute, which might mean not commencing a claim at all. It also highlights how it is far from risk-free to take on litigation as a litigant in person in respect of legal costs. For practitioners facing a litigant in person, here are our top 5 tips:

 

  1. Ensure that there is a clear correspondence trail of you suggesting, if not imploring, the litigant in person to obtain independent legal advice;

 

  1. Accept that you are going to have to drive the case forward, for the sake of your own client if not for the litigant in person’s lack of knowledge, and use this to frame the dispute on your terms;

 

  1. Be realistic about the prospects of turning a procedural slip-up from a litigant in person into an outright tactical or legal victory – agreeing an extension may be irritating, but spending thousands on a failed crusade to strike out, for example, can spectacularly backfire and cause further delays and wasted costs;

 

  1. If the prospect of the parties attending a mediation is available, it may be worth agreeing to a mediator being paid for out of the estate. This may be the only time a litigant in person has someone ‘pushing back’ on their case and, even if settlement remains elusive, you have given your own client the best opportunity at avoiding a lengthy and costly Trial, whilst protecting them on costs; and

 

  1. Pay particular attention to how and when to make tactical offers and ensure that there is a watertight correspondence trail demonstrating reasonableness, proportionality, good conduct and attempts to reduce costs.

 

IDR Law is an approachable, boutique firm and the only one in the country dealing solely with inheritance dispute resolution. Whether you’re a law firm, or an individual who feels they would benefit from our expertise, get in touch here, email us at enquiries@idrlaw.co.uk or call on 01423 637050.

 

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