Unbundled services may or may not be available

Family Law|May 26th 2016

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.

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  1. Paul Apreda says:

    Oh John, the desperation is palpable ! Imagine when there are no hearings any longer and it’s only online ‘justice’ then the barristers will be joining in the cries!
    I do feel for you (well, actually for the really great solicitors who give their time and effort in volunteering with our charity through our 11 Law Works clinics) because the sense of despair and frustration with a system that seems disinterested in your wellbeing and safety is a very familiar feeling to many of the people you routinely decry.
    In relation to Legal Aid however can I ask you to look at Regulation 33 (L) of the Civil Legal Aid Procedures Regulations and tell me how difficult you think it is to ask your GP simply to refer you to a DV support service!!! If solicitors havent twigged that by now I suspect there’s no help for them 😉
    As ever, best wishes

  2. Andy says:

    If self representation is daunting enough and handling all the paperwork then costs reduced are a benefit…you might even get a good result if you succeeded but in reality you don’t.You engage a solicitor who will guide you through the pitfalls etc.in reality this this is yet again a money put so to all the acting legal professionals high time you actually did what you are supposed to do not just take take take..Then have a nice chat over a drink and come to a agreement then job done…easy…
    And that will be about £10.000 sir..that will do nicely…next victim….
    So either way you loose..with costs in the second option…roll on Online divorce and self with no blame introduced….who needs solicitors….

  3. Stitchedup says:

    Wouldn’t it be easier just to chuck in an allegation of domestic abuse?? Legal aid = problem solved. Solicitors have been doing this since time immemorial, what’s stopping them now???

  4. spinner says:

    Unless your financial case is particularly complex solicitors are a waste of time and money anyway, they don’t have a clue what the outcome it going to be due to the post code lottery that passes for a family court and the paper work and form filling although boring is hardly difficult. What you do need that is until we have online dispute resolution is a good barrister and you can go direct access nowadays.

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