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Swinging in the wind

Litigation is adversarial. That means, at bottom it is a contest. If winning the contest is important, which it normally is, it is dangerous to engage in the process without proper resources.

To lack legal representation in your proceedings is, therefore, a crisis. That’s a crisis that may be general, as seen HERE.

Or it may be a personal, self-inflicted crisis as seen in the case of Heather Mills in her self-representation in her divorce action with Paul McCartney.

In fact a judicial system needs lawyers as much as any litigant. The judiciary may admit to that need by recognising the value of a McKenzie Friend, or by engaging in a substantial public examination of the alleged necessity of imposing legal representation on a litigant, Ahmad Edwards, as seen HERE.

(In fact the focus in the Edwards case was on preventing him from representing himself.)

In that context it is a shocking thing for a litigant to find that, after insuring himself/herself against liability for claims in, say, negligence, he/she is obliged to defend the proceedings personally.

Alternatively, having insured his/her property and paid the premium, it is galling to be refused the indemnity against loss contracted for and perhaps be forced to undertake long and dangerous proceedings in court to get the benefits contracted and paid for as happened HERE.

Where an insurer accepts its obligations under such a policy it normally assumes responsibility for the conduct of the defence of the action. (In fact, it will insist on assuming control; if the plaintiff is successful it is the insurer who will lose ultimately).

An insured person, nevertheless, should keep in mind that he/she is the defendant and should monitor the progress and conduct of such proceedings. Persons holding professional indemnity insurance tend to be sophisticated consumers of legal services and are usually very keen to monitor proceedings invoking a right to indemnity under such policies. They know that the proceedings are important to them, but they are not alone in such interest. Every insured should adopt the same interest.