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Litigants in Person – common issues and strategies

Ahead of a Supreme Court hearing arguments on whether a Court of Appeal decision breached a Litigant in Person’s human rights, Ian Dinning considers the pitfalls of dealing with such claimants.  

Back in April 2016, DWF’s Andrew Cousins reported on the Court of Appeal decision in Barton v Wright Hassall LLP [2016] EWCA Civ 177.

In that case, the Court of Appeal dismissed Mr Barton’s appeal to validate service of his claim form, which he sent by email a day before the last date for service.  The basis for the decision is set out in more detail in Andrew’s article.  However, the underlying reason was that the defendant’s solicitor had not stated that they accepted service by email in accordance with paragraph 4.1 of Practice Direction 6A of the Civil Procedure Rules.

Mr Barton, a Litigant in Person (‘LiP’), alleges that, in reaching its decision, the Court of Appeal has breached his human rights.  Specifically, his right to a fair trial (article 6) and an effective remedy (article 13) under the European Convention on Human Rights.  That appeal has been allowed and the Supreme Court will hear the case on 22 November 2017.

The outcome of that hearing is for another day and another update.  It does, however, serve as a reminder of the hazards of dealing with a LiP.  This article hopefully provides helpful points to remember when dealing with such parties.

    

Who is a Litigant in Person?

A LiP is any person or entity that is unrepresented by a legal professional.  It could be an individual representing themselves, or it could be someone representing a company or other corporate entity. 

As a result, they can have a variety of characteristics that need to be considered, such as familiarity with the legal system, finances, attitude, education.   

Equally, the reason why they are a LiP can be just as a varied.  For example, they may not be able to afford legal representation, they may not wish to pay legal costs, or they may feel aggrieved or let down by legal system or a lawyer previously. 

In general, more difficulties occur when the LiP is an individual representing himself or herself, who is unfamiliar with the rules and procedures and has, to some degree or another, a genuine claim (and can be very defensive of any criticism of that claim).    

Common issues

LiPs are less likely to comply with procedural requirements, especially timescales, for the reasons that they are unaware of them or do not understand.  They are also more likely to make incorrect assumptions based on what they think should be the position whereas some provisions of the CPR may be counter intuitive.  Barton v Wright Hassall LLP exemplifies this.  The parties appear to have been corresponding regularly by email and the solicitors even acknowledged receipt of the claim form.  It is easy to see why Mr Barton thought service by email was allowed.

LiPs may have difficulty with a clear and comprehensive expression of ideas they wish to convey or queries they want to raise and/or, from the perspective of a practising lawyer, focus on irrelevant issues.  Understandably, given that they are usually not legally qualified, they may also struggle with the concept of evidence and the requirement to prove a factual matter and the necessary constituent elements of a cause of action. If they feel particularly aggrieved, LiPs may also be disinclined to settlement or attend a mediation.  They may even resist any compromise and misunderstand the term ‘without prejudice’ – citing it as evidence of an admission.

Again as seen in Barton v Wright Hassall LLP, LiPs may be less likely to let matters lie or accept decisions of the Court.  They may pursue matters unreasonably.

Whilst adverse costs orders are less of an issue, subject to direct access Counsel, disbursements and the minimal costs LiP are permitted for their time, the additional time taken to deal with LiP can significantly increase the costs incurred in defending any claim brought.    

Finally, a LiP may well not have the resources to satisfy a Judgment or costs order.  Therefore, even if a claim is successfully rebutted and an adverse costs order made against the LiP, they may be unable to satisfy it so that the successful defence of a claim may not be reflected in financial terms. 

Court’s approach

The general impact of a LiP is that they increase the time, costs and resources required to deal with a matter.  Following legal aid reforms as well as increase in the Court issue fees, there is also a rise in the number of LiPs.

In an attempt to head-off and minimise disruption, a Court may take more time to explain issues to a LiP and may be more lenient in terms of compliance with court orders and deadlines.  This may take the form of more directions hearings to agree what steps are required, which the LiP will not deal with by consent.

Additionally, a Court may expect a represented party to prepare any necessary Court documents or bundles where the usual obligation may be the opposite.

Dealing with a LiP

There are two contrasting issues that arise when dealing with LiPs –

  • A solicitor’s obligation to the Court; and
  • A solicitor’s obligation to their client.

This can often require solicitors to tread delicately.  When done successfully, this can minimise the potential pitfalls in dealing with such cases.

Not only is it prudent to inform your client that, where relevant, your obligation to the Court outweighs your obligation to them, it is a requirement of the SRA Code of Conduct – outcome 5.5.  It is also useful in explaining why you are assisting the LiP.

Such assistance may include:

  • Providing copies of the relevant rules (such as the applicable Pre-Action Protocol) and additional copies of documents;
  • More detailed explanations of what is required to progress the claim;
  • Reminders of upcoming deadlines and the consequences of missing them.

In relation to copies of document and the preparation of bundles, the Court may also order a represented party to deal with this in any event.  In advising a client that such assistance will be in their favour as well, it is also worth pointing out that assisting a LiP to adhere to the rules may ultimately assist the client,  A useful comment from Floyd LJ in Barton v Wright Hassall LLP, when considering the case law in relation to service of the Claim Form was to the effect that “The cases do show that technical game-playing by a defendant will count against him”. 

  • Whilst the Court may be more lenient to a LiP, a LiP is subject to the same rules as a represented party.  If those rules have been highlighted, or copies provided, to the LiP, a Court is less likely to give the LiP leeway and may apply the full effect of the rules sooner.     

The Law Society has published guidance on how to deal with LiP in person, which also includes a note that can be provided to clients

Tactical considerations

There are several considerations that may come to the fore when dealing with a LiP, including:

  • Consider any of the the LiP’s previous actions – there may be a restraint orders against vexatious litigation;
  • Strike-out/Summary Judgment application at the beginning of the matter where the claim discloses no discernible cause of action or where a claim has been brought previously (possibly under a different guise) so the current claim is effectively a second-bite of the cherry.
  • In cases where there is evidence that suggests the LiP may lack capacity, and is therefore a ‘protected party’ as defined under CPR 21.1(d), it may be appropriate to write to the Court to draw this to its attention.  Indeed, under CPR 21.2, if the LiP does lack capacity, they will require a litigation friend before the proceedings can proceed.  The court appointment of a McKenzie friend, may lead to a more reasonable approach and, hopefully, a swifter resolution.

Conclusion

The above is an outline of the issues to be aware of and strategies available for dealing with LiPs and managing a client’s expectations.  However, each matter, as ever, must be assessed on the individual facts and judged accordingly. But, with a legal system with ever increasing costs, one thing is for certain, the number of LiPs is only going to increase.

Contact

For more information, contact Ian Dinning, Solicitor on 0207 280 8928 or email ian.dinning@dwf.law.

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This information is intended as a general discussion surrounding the topics covered and is for guidance purposes only. It does not constitute legal advice and should not be regarded as a substitute for taking legal advice. DWF is not responsible for any activity undertaken based on this information.

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