So you are involved in contested family proceedings. You can’t afford to instruct a solicitor to represent you throughout the proceedings and legal aid is not, of course, available to you. You can deal with the more straightforward aspects of the case yourself, but you really need some help with the more complicated parts, such as preparing documents and getting ready for trial. Wouldn’t it be nice if you could instruct a solicitor just to deal with those aspects?
For many litigants in person representing yourself must be a bewildering, and even frightening, process. Surely, any help they can be given must be a good thing?
But things are not quite as simple as that…
Providing a client with a partial service in the way mentioned above has become known by the somewhat awkward term ‘unbundling’, i.e. unbundling, or separating, that part from a full service where the solicitor would represent the client throughout the proceedings. On the face of it, it seems a good idea in these post-legal aid times, and certainly many in the profession have decided that it is something worth doing. The idea has even been encouraged by those looking for ways to fill the gap left by the abolition of legal aid, including top judges and advice agencies.
There is, however, a problem with unbundling. Obviously, the solicitor is responsible for anything that may go wrong in connection with the unbundled service that he or she provides. However, what if something goes wrong in connection with some other part of the case, perhaps something linked to the unbundled service, or perhaps something that the solicitor should have known about, even if he or she did not actually deal with it? Where does the solicitor’s liability end?
The question is so critical that many solicitors believe it is foolish to offer unbundled services, as there is too great a risk that they will be held liable for things that were not within their ‘retainer’ , i.e. the work that they have agreed to do for the client, in return for payment. Obviously, if the entire profession were to take this view then a very useful service for litigants in person will have been lost, leaving many of them to deal with their entire cases without legal assistance.
The adherents of unbundling were given a boost last November when Lady Justice King in the Court of Appeal stated that it would not be fair for solicitors to offer limited services at a reduced price, only to find that they still owed their clients the same duty that they would if they were offering a full service. That decision seemed to reassure solicitors offering unbundled services, and may even have led to an increase in the number of firms prepared to offer the service.
However, a ruling by Mrs Justice Asplin last week seems to have put a spanner in the works. Her full judgment has not yet been published but the case concerned a litigant who had the assistance of a solicitor through unbundled services. The litigant was penalised in costs by the court for failure to file a bundle of documents in time, and for failing to serve the bundle on the other party. Whilst these matters were not within the solicitor’s retainer, Mrs Justice Asplin noted that the solicitor had been involved in the process of producing the bundle, and must have been aware that service should take place. In these circumstances she was not prepared to give the litigant any latitude, as the court is sometimes prepared to do for an unrepresented party, and refused the litigant’s application for permission to appeal against the costs order.
The decision appears to be a serious blow to those solicitors offering, or wishing to offer, unbundled services, and it has even been said that it “pretty much kills unbundled litigation services”. Whether that will prove to be the case we will have to see – it would be a sad day if struggling litigants in person were denied such help. Even if unbundled services continue to be offered, however, one thing is clear at the very least: solicitors offering such services are going to have to very tightly define what is, and possibly also what is not, within their retainer.