Navigating the complexities of self-represented litigants in South Australia

Self-represented litigants can be challenging as opponents for a number of reasons.

Some self-represented litigants have a valid claim or defence and are genuinely trying their best but as they are not legally trained, find it challenging to properly articulate their case or to navigate the necessary procedural steps.

Conversely, some self-represented litigants have impressively invalid claims or defences and engage in verbose and repetitive correspondence with the Court and their opponent or their opponent’s legal representative.

In any event, files involving self-represented litigants are different to those in which all parties are legally represented. Self-represented litigants typically do not have legal skill and ability, nor do they have objectivity in respect of their case and can be very hostile towards their opponent and their representatives.

It is important to understand what procedural rules are available to curtail challenging self-represented litigants as well as the ethical obligations solicitors and the Court has to self-represented litigants in order to navigate files involving them.

Procedural rules available under the Uniform Civil Rules 2020 (SA)

The UCR contains a number of rules which are useful to keep in mind.

UCR 1.5 states that the object of the rules is “to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings…”

UCR 12.1 gives the Court general powers to make any order that it considers appropriate in the interests of justice. Examples of what the Court can do is:

• Order that a provision of the Rules not apply or be modified
• Specify consequences of non-compliance with an order
• Make an order about the form of document to be filed
• Order the stay of a proceeding, of a step in a proceeding or enforcement of a judgement or order.

UCR 172.1 empowers a court to make orders about the conduct of a trial including determining the way in which the evidence is to be adduced and limiting the time to be taken by the trial or any aspect of it.

The court has broad powers: thinking creatively about how to ask the Court to use them may assist in moving a matter along more efficiently if it is stuck at a particular point.

Obligations of lawyers acting for a party

Solicitors have an ethical duty to the court and the administration of justice [1] which prevails to the extent of inconsistency with any other duty.

A solicitor also must take care to ensure that if they give advice to invoke the coercive power of a court, that step is reasonably justified, is appropriate for the robust advancement of the client’s case on its merits, is not given principally to harass or embarrass a person.[2]

Perhaps most obviously, a solicitor also has an ethical obligation to follow a client’s lawful, proper and competent instructions.[3]

Practically speaking, some key tips when dealing with self-represented litigants are:

• Confirm all discussions in writing with self-represented litigants in clear and easy to understand language
• Be kind and respectful at all times, even if the self-represented litigant is rude or very difficult to deal with – remember you are an officer of the Court
• Avoid filing unnecessary interlocutory applications such as applications for further and better particulars and applications for further and better discovery
• Keep in mind that while the Court does have the power to take procedural steps unilaterally, most judicial officers would prefer to be asked to do something by a party – consider whether there is something you can ask the court to do to move a matter along
• Try to expedite the matter to be dealt with as soon as possible
• Consider whether each step you plan to take is in your client’s best interests, is an effective use of costs and is the quickest and easiest way to achieve what you want to achieve.

Obligations of the court

The court has the obligation to ensure that every person has a fair trial. Practically in the case of a self-represented litigant, that means the court needs to ensure that they are given such information about their rights to make an informed decision about whether or not to exercise them. [4]

The judge cannot become the advocate for a party and must remain impartial.

Practically speaking, the court can put limits on the length of oral or written submissions or decide to determine an application on the papers if that will be a helpful way to approach a matter.

A judicial officer can also limit who is in the court room or ensure that Sheriff’s Officers are present to provide a calming influence if litigants have a tendency to become aggressive or violent.

Conclusion

Matters involving self-represented litigants can be demanding on a number of fronts.

The key to successfully navigating them is to have a strategic mindset of how to get to the end of the matter as quickly, efficiently and painlessly as possible in the context of the ethical and procedural framework while always acting in your client’s best interest.

That, and having a thick skin and maintaining a healthy sense of humour.