Being Your Own Lawyer

In order to qualify as a barrister or solicitor in England and Wales one must sit several tough legal examinations, undergo intensive professional training and then prove one’s self during a long period of apprenticeship. Aspiring lawyers are not permitted to speak in court until they have passed through all of these challenging stages over a period spanning at least five years.

In spite of these exacting requirements, the courts are quite prepared to allow unqualified people to represent themselves in court. Indeed, this is becoming increasingly common as a direct result of government policy. This article looks at the problems facing litigants in person and the steps that could be taken to reduce these problems, benefiting both the litigant and the system as a whole.

The Rise of Unrepresented Litigants

Litigants-in-person are becoming increasingly common in the courts. In 2011, for example, research from the Personal Support Unit, a group set up to help unrepresented litigants, reported a 19% increase on the previous year. These figures are guaranteed to increase in the near future.

The main reason for this is the recent reforms to legal aid funding. Fewer types of cases will be eligible for legal aid support as a result of changes introduced in the Legal Aid (Sentencing and Punishment of Offenders) 2012. For example, people with housing, welfare, and education cases will now all be broadly ineligible for legal aid support. Furthermore, reductions in legal aid fees will make lawyers less willing to take on as many cases as before.

As a result, people will have no choice but to take control of their cases themselves. It is therefore wise for potential litigants in person to be aware of what this means in practice.

What are Litigants in Person Required To Do?

Broadly speaking, litigants in person must assume all of the responsibilities of a lawyer working on their case. In practice, these tend to include:

  • Case Preparation – thinking about which witnesses to call, writing questions, making bundles of evidence etc.
  • Negotiation – discussing offers to settle the case with representatives from the other side.
  • Drafting – parties are required to produce formal documents indicating their positions (known as ‘pleadings’). A litigant-in-person would, for example, have to draft their own statement of case or request for information.
  • Administration – litigants will be responsible for helping to arrange the dates of court hearings and for the disclosure of documents.
  • Advocacy – this is perhaps the most onerous requirement for an unrepresented litigant. The litigant will be required to present all of his or her oral submissions in court.
  • Legal Research – while judges will help litigants to understand the law, research may have to be conducted by the litigant into complex areas such as damages and costs in order to satisfy court requirements.

There are consequently a large number of tasks that a litigant-in-person must undertake if they are to represent themselves in court. These skills take years to learn and develop for professional lawyers and it is possible to infer from that just how difficult they must seem to a lay person. It is perhaps unsurprising, therefore, that litigants-in-person tend to create a series of problems in the courts system.

What Are the Challenges Presented by Litigants in Person?

 One reason the recent legal aid reforms were so fiercely opposed by the legal profession is because of the likely rise in unrepresented litigants. The legal community was already aware of the problems that litigants-in-person could create in court and feared the negative impact of any increase.

The most obvious problem presented by unrepresented litigants is the risk of injustice following a person’s failure to put forward their case properly. A lay person may lack the skills to convincingly make submissions on the strength of their evidence or to ask the right questions of key witnesses. This can seriously affect chances of winning in court and may sometimes lead to the wrong outcome.

In addition, litigants-in-person inevitably create delay within the system. Complex matters, such as disclosure, must be explained to an unrepresented litigant in detail that would not be required if they had the services of a lawyer. Extra time must be afforded to ensure compliance with directions. More time is needed in order to narrow the issues in a case. All of this delay leads to greater expense and reduces the efficiency of the justice system as a whole.

What Can Be Done About A Nuisance

The word ‘nuisance’ carries with it almost Victorian connotations. It creates images of young street children being reprimanded by officers of the law. Indeed, it is the type of word that people would think had long vanished from English common law.

Despite its anachronistic appearance, nuisance is a useful tool that allows people to sue for things that may seriously affect their standard of living. As such, it is worth exploring the limits of nuisance and how claims can be brought.

What Is Nuisance?

Nuisance refers to situations where someone unreasonably interferes with another’s enjoyment of land. Examples of nuisance could be loud music being played from a neighbouring property, damage to a garden caused by a neighbour’s dog, or bad smells from nearby factories drifting over to residential areas.

As a result, it is a tort based on property. This is significant because noise pollution and other unwanted emissions can hugely disrupt a person’s health and happiness. It is therefore important that people are able to look to the law if they are faced with a nuisance.

How Is Nuisance Different From Negligence?

 Although claimants are able to sue for nuisance and negligence separately, there is very little difference between the two. Nuisance and negligence both allow people who have suffered problems caused by other people to seek justice through the courts. In many cases, if a person has a valid claim for nuisance they will also be able to sue for negligence.

The main point of difference is probably that negligence places more emphasis on damage and tangible loss. With nuisance cases, the central damage may be less quantifiable – lost sleep, unpleasant smells etc. It is therefore advisable for people to pursue nuisance in these cases as well as negligence.

Who Can Sue For Nuisance?

 Another important difference between nuisance and negligence is that nuisance is only available to those who have a proprietary interest in the land that they are occupying. A ‘proprietary interest’ means essentially that the claimant owns or rents the property. Visitors or those who occupy property under a license are thus prevented from suing.

This is a significant prohibition as it excludes large numbers of potential claimants. Those who do not have a proprietary interest in the land they occupy are therefore only able to rely on negligence, which simply requires there to have been a duty of care on the defendant.

What Must Be Proven?

 The main issue that claimants must prove in nuisance claims is that the defendant’s use of land was unreasonable. There can be no valid claim, for example, against a person who creates small levels of noise in connection with running a business in daytime hours. Most people would regard this as a reasonable use of land.

Rather, nuisance only exists to prevent unreasonable interference. In deciding whether a particular use of land is unreasonable a court will consider:

  • Locality – obviously more noise is to be expected in an urban industrial area than in a quiet corner of the countryside. The courts will therefore be more likely to rule in favour of claimants in the latter rather than the former.
  • Sensitivity of the claimant – the court will judge whether interference with land has been unreasonable according to the standards of the ‘ordinary, reasonable claimant’. A claimant who has a particularly acute sense of hearing, for example, will be less likely to show that noise coming from neighbouring properties is excessive.
  • Public benefits – if the public derives a benefit from the defendant’s use of land, e.g. through the increased housing produced through construction, a court will be more likely to conclude that it was reasonable.
  • Malice – if it is demonstrated that the defendant is creating the disturbance in order to annoy the claimant rather than for any legitimate purpose, the courts will come down strongly in favour of the interference being unreasonable.

The locality point is particularly important where the claimant has recently moved to the area. If a claimant has knowledge of the local area and moves to a place where nuisances are likely he is said to have ‘moved to the nuisance’ and will be unable to prove that the defendant’s use of land was unreasonable.

How Long Must The Nuisance Continue For?

 There is no set period of time a nuisance must continue for in order to allow a person to sue but it is nonetheless clear that the interference with land must take place on at least one occasion. As a result, the nuisance must be continuous even if it does not continue for very long.

Clearly, the longer the nuisance goes on for the more likely it is that a court would consider it to be unreasonable.

Who Can Be Sued?

 Generally, the claimant should sue the creator of the nuisance. In many cases, the creator of the nuisance will be the owner of the land from which the nuisance originates. In other cases, however, especially in the industrial context, the creator of the nuisance will be occupying the land in another capacity, usually as a licensed contractor.

In addition, landlords can be sued for nuisance even if they do not create the nuisance themselves. This is only really possible, however, if it can be proven that the landlord was aware of the nuisance and consented to it continuing over time. One good example of this is if the landlord authorised repairs to their property, which led to noises and fumes being received by neighbouring houses.

Summary and Key Points

  •  The tort of nuisance allows people to sue for unreasonable interference with their enjoyment of land.
  • Nuisance is a property-based tort and is only available to those with a proprietary interest in land.
  • In considering nuisance cases, the court must decide whether the defendant’s use of land was reasonable. The court will take into account the locality, the sensitivity of the claimant, whether any public benefits arose from the defendant’s activities, and whether any malice was involved.
  • Claimants may sue the creator of the nuisance, whether that is a land owner, tenant, or licensee, or, in limited circumstances, the landlord directly.

What Can Be Claimed For Breach Of Contract

When one party breaches a contract the consequences can be severe. If an agreement involving large sums of money has been unlawfully brought to an end by one of the parties, the other party can turn to the law to recover the full range of their losses.

This article examines what happens when a party takes this course of action, in particular the circumstances under which the ‘innocent’ party can terminate the contract following a breach, the damages that can be claimed and how financial issues are resolved.

When is a Contract Breached?

 Using literal terms, a contract is breached whenever one party departs, however slightly, from the exact wording of the contract. For example, if a contract for the sale of goods provides for delivery to take place no later than 5.15 and the delivery is made at 5.16 there will be a breach of the contract.

Despite this technical interpretation, the parties will only look to the law of contract when a more serious failure takes place. In a contract there are two types of terms: conditions and warranties. A condition is a term of such importance that it will entitle the ‘innocent’ party to claim the contract has finished if the condition is breached. A warranty, by contrast, only entitles the innocent party to claim damages if it is breached.

While trivial infringements such as the example above will always entitle the innocent party to sue for damages (which will be nominal in this scenario), only important violations (known as ‘repudiatory breaches’) will allow the innocent party to terminate the agreement or claim significant damages.

When Can A Contract Be Terminated?

 As explained above, if a condition of the contract is broken, the innocent party has the option of terminating the remainder of the agreement. For example, if a contract states that A must supply B with five instalments of bananas and instalment two actually contains apples, B will have a choice as to whether to continue with the contract or hold it as terminated.

If B decides to continue with the contract, A will have the opportunity of supplying an additional instalment of bananas in order to compensate for the defective second instalment. B will then be able to claim any consequential losses from the second instalment in the future. By contrast, if B decides to terminate the agreement, A will not have to supply any more bananas and B will simply bring a claim for damages suffered in the past.

It is worth repeating that only breaches of conditions will put the innocent party in a position where this choice can be made. Trivial breaches will only create an action for damages. Whether or not a term is a condition will depend either on the law – certain terms, e.g. the requirement for goods to be of satisfactory quality, are implied into every contract and automatically allow the innocent party to terminate if breached – or the circumstances of the contract. In a contract where time is critically important, for example, it is much more likely for late delivery to be considered a breach of condition.

How Are Damages Calculated?

 When a claim is brought for breach of contract, the remedy the innocent party is seeking is usually monetary compensation, known in the law as ‘damages’. Damages are intended to compensate for the claimant’s losses: the money he would have gained if the contract was performed according to the terms.

The losses that can be claimed, however, cannot be too remote from the consequences that the parties thought might happen when the contract was formed. In other words, the losses must have been ‘in the reasonable contemplation of the parties’ in order to be recoverable.

In addition, the claimant is expected to ‘mitigate his losses’. This means that after the contract is breached, the claimant must take steps to avoid suffering more loss than is necessary. It is not possible, for obvious reasons, for a claimant to stand idly by and endure further damages so he can claim more money from the defendant later on. Examples of mitigating losses include taking out insurance or attempting to sell products rendered defective as a result of the breach.

The main question in calculating damages is whether the ‘expectation’ or ‘reliance’ basis is used. The expectation loss method aims to put the claimant in the position he would have been in had the contract been performed. There are two ways of assessing damages under the expectation loss method:

  • Cost of Cure – where the defendant was supposed to have carried out a certain act, e.g. delivering goods, the cost of cure will be the difference between the market price and the contract price of the goods. This is the measure that is used in most cases.
  • Diminution in Value – where there is a contract for services relating to property, and the value of the property diminishes as a result of the breach, the claimant can recover the lost value.

Whether the cost of cure or diminution in value methods are adopted will largely depend on common sense and the nature of the breach in each case. The reliance measure, by contrast, is less common and simply seeks to compensate the claimant for money spent on the performance of a contract.

Can Damages Be Claimed For Emotional Loss?

 The short answer to this question is not really. The general rule is that damages can only be claimed for the financial losses the claimant has suffered; any emotional or incalculable losses cannot be recovered.

Exceptions to this rule have, however, been developed in recent years. It is now possible to claim damages arising from loss of enjoyment when a key aspect of the contract was happiness. The main example of such an agreement is in the context of holidays or travel arrangements.

The uncertainty inherent in seeking financial compensation for emotional disappointment is reflected in the fact that any damages awarded in this category should always be modest and restrained. The maximum sum of money that can possibly be claimed is £10,000.

Damages for Misrepresentation

 A party can bring a claim for misrepresentation if they are induced to enter into a contract on the basis of false information. The representation must have been a clear statement of fact and reliance on this statement must have been reasonable at the time. False information can be supplied innocently, negligently or fraudulently.

In common with breach of contract cases, claimants for misrepresentation can seek to rescind the contract. Rescission will place both parties in exactly the same position they were in before the contract had been created. This is only possible, however, if the subject-matter of the contract still exists.

Damages for misrepresentation are assessed on the same basis whether the information was provided negligently or fraudulently. Claimants can be entitled to the full range of consequential losses they have suffered as a result of the false statement. As a result if one party lost the ability to perform another contract as a result of defective machinery following misrepresentation, they may be able to sue for the value of the lost contract.

Summary and Key Points

  • When a contract is breached the innocent party may be able to terminate the contract and/or claim damages.
  • Termination is available if the guilty party has breached a condition of the contract. The effect of this is to free both parties from future obligations. The innocent party may still claim damages.
  • When awarding damages, the court will aim to put the parties in the position they would have been in but for the breach of contract.
  • Damages will usually be assessed on the basis of what was reasonably foreseeable and necessary in order to compensate for the cost of cure or diminution in value.
  • Damages cannot ordinarily be claimed for loss of happiness. The exception to this is in leisure or holiday contracts.

In addition, further damages can be claimed for misrepresentation.

What Can Be Claimed In Tort Law

Claimants who successfully negotiate all of the various hurdles in suing on tort law grounds such as negligence or nuisance will then be entitled to seek remedies at the end of the case. The main remedies that are available to claimants in tort law are damages and injunctions.

This article explores the principles behind tort law damages and introduces the notion of seeking injunctions against others.

How Are Damages Calculated?

Where a contract is breached the ‘innocent’ party will be entitled to be put in the position they would have been in had the contract been carried out. As a result, damages in contract law seek to compensate the claimant for disappointed expectations.

In tort law, the award of damages looks to the past rather than the future. Claimants for negligence, for example, will be put in the position they would have been in had the negligent act not occurred. The courts therefore compensate claimants for things they did not expect to happen.

A key principle of both contractual and tortious damages, however, is that the defendant’s acts must have caused the claimant’s losses. In particular, the losses suffered by a claimant must have been reasonably foreseeable to the defendant. This means that a claimant cannot sue for losses that had no conceivable link to the negligent act, e.g. loss of employment following a simple road traffic accident causing whiplash.

In tort cases damages are typically assessed at the date of the act in question. That said, there may be circumstances, usually when the claimant’s condition deteriorates between the act and the trial, when the courts take a different view and assess damages after liability has been established.

What Factors Will The Court Take Into Account?

 There are several principles the court will bear in mind when deciding on the measure of damages in tort cases.

Firstly, if a claimant has suffered property damage, the courts must choose whether or not to compensate the claimant for the cost of repairing the property or the diminution in value before and after the incident. In cases where the property is used, e.g. machinery, the courts will usually compensate for the cost of repair/replacement, whereas in cases where the property is held as an investment, e.g. with art work or classic cars, the courts will tend to award the difference in value.

Secondly, the courts must consider whether any reduction should be made for contributory negligence. This applies where the claimant has contributed to his losses through his own negligence. For example, if a person makes the choice to get into a car with a drunk driver, who then crashes the car and causes personal injury to the passenger, the passenger will be able to sue the driver but his damages may be reduced on account of his clearly negligent decision to get into the car.

Thirdly, as in contract law, claimants are under a duty to mitigate their losses. It is not sufficient for a claimant to artificially suffer more damage in order to claim an increased amount in court. Therefore, they must do what they can to improve their position, e.g. in personal injury cases by seeking prompt medical treatment.

How Are Damages Awarded For Personal Injuries?

 There are huge, voluminous ring binders devoted to the single subject of damages in personal injury cases. It is a highly complex and detailed area of the law. In this part of the article, the basic principles of damages (known as ‘quantum’) will be considered. Those seeking more information should consult specialist textbooks.

Essentially there are two types of damages in personal injury cases:

  • Special damages – these cover actual monetary losses the claimant has suffered from the accident – medical bills, travel expenses to and from hospital, loss of earnings, nursing costs etc.
  • General damages – this category is intended to compensate for the intangible losses of a claimant’s ‘pain, suffering and loss of amenity’. There are precedents for past awards (adjusted for inflation) and formulas that must be followed in this area. General damages also compensate for any disadvantage on the labour market as a consequence of the injury.

It should be noted that claimants are free to seek medical treatment at private institutions rather than the National Health Service; the defendant is required to pay the costs in any event.


 Sometimes, however, damages will simply be an inadequate remedy. If a claimant is desperately requiring something to stop happening, a financial award will not be enough to achieve justice. Where this is the situation, it is open to claimants to seek an injunction.

Injunctions are essentially legal bans on taking a course of action. A prohibitory injunction prevents the defendant from doing something they were doing before the injunction was imposed. Another type of injunctions is mandatory injunctions, where the defendant is ordered by the court to do something they were not doing before the injunction was taken out.