Specimen Opening Statement For An Unrepresented Client
• Ask the court or tribunal for permission to make a brief opening statement.
• Explain one’s own position so far as any or all of the following apply: limited financial means, no legal training or background, inability to obtain representation because of lack of money. Employment, medical and family status. Legal aid not available. No legal expenses insurance. Not a member of a trade union. Unable to obtain conditional fee. Have approached local Law Centre and charitable bodies for example the Bar Pro Bono Unit, without success.
• Draw the attention of the court or tribunal to the overriding objective of the Civil Procedure Rules. The overriding objective of the Rules is to enable the court to deal with cases justly. This includes ensuring that the parties are on an equal footing.
• Submit that the parties are not on an equal footing because the defendant has legal representation which he can afford, whereas claimant does not.
• Draw the attention of court or tribunal to Article 6 of the European Convention on Human Rights: in summary, everyone is entitled to a fair trial. Submit that there is a danger of this principle being breached where one party can afford representation and the other side cannot.
• Draw the attention of the court or tribunal to the decision of the European Court of Human Rights in the case of Airey v Ireland (1979) 2 E.H.R.R. 305, where that court ruled that there had been violations of Article 6 because Mrs Airey did not enjoy an effective right of access to the Ireland High Court to seek a decree of judicial separation. Legal aid was not available for the purpose of seeking judicial separation and Mrs Airey had insufficient means to pay the cost of proceedings herself. The court made the following points:
The European Convention on Human Rights was intended to guarantee not theoretical or illusory but practical and effective rights. Having regard to the complexity of the procedure and points of law involved, to the evidential questions arising and to the emotional involvement entailed by marital disputes, the possibility open to Mrs Airey of conducting her case herself did not provide her with an effective right of access.
The fact that the alleged right of access stemmed solely from Mrs Airey’s personal circumstances was not decisive. Hindrance in fact could constitute a violation of the Convention just like a legal impediment and certain Convention obligations, such as that to secure an effective right of access to the courts, could on occasion necessitate positive State action.
It was most improbable that a person in Mrs Airey’s position could effectively present his or her own case.
• Draw the attention of court or tribunal to the decision of the European Court of Human Rights in the case of Steel and Morris v United Kingdom (2005) The Times, February 16, where that court ruled that the denial of legal aid to the applicants deprived them of the opportunity to present their case effectively before the court and contributed to an unacceptable inequality of arms.
• Point out to the court or tribunal the decision in Bertuzzi v France (2003)In June 1995 B obtained full legal aid to start proceedings against a lawyer. The lawyers assigned to the case applied to withdraw because they had personal links with the defendant. Later in 1995 B asked the president of the legal aid office and the president of the bar council to assign another lawyer. B received no reply until March 1997 when he was told that the grant of legal aid had lapsed.
The European Court of Human Rights ruled that there had been a breach of Article 6 of the European Convention on Human Rights – B had not had effective access to a court. The court made the following points:
The relevant authorities should have arranged for a replacement who would provide B with proper assistance.
Permitting B to represent himself in proceedings against a legal practitioner did not afford him access to a court under conditions which would secure him the effective enjoyment of equality of arms which was inherent in the concept of a fair trial.
The Convention is intended to guarantee not rights which are theoretical or illusory but which are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial.
• State that one appreciates that the court or tribunal may regard this submission as not relevant to current proceedings: advise the court or tribunal that the issues raised in the submission may also be raised in future appeal proceedings and/or in an application to the European Court of Human Rights.