The thorny issue of Litigants in Person
Let's Talk Shop Spring 2019
In the current climate of drastically reduced legal aid, restrictions on conditional fee agreements and the proposed increases to the small claims track limit, it is generally accepted that the upward trend of litigants in person (LIPs) appearing in court up and down the country will continue. Micaela Dempsey considers the effect of this on retailers where customer service and brand protection is so important.
Court treatment of LIPs remains the subject of considerable debate. The position of LIPs is sympathetically summarised in the Equal Treatment Bench Book - Litigants in Person (2013):
“Most unrepresented Parties are stressed and worried, operating in an alien environment in what for them is a foreign language. They are trying to grasp concepts of law and procedure about which they may be totally ignorant. They may well be experiencing feelings of fear, ignorance, frustration, bewilderment and disadvantage, especially appearing against a represented Party…”
Judicial guidance is clear that disadvantaged parties such as LIPs should be treated in such a way that redresses that disadvantage (in accordance with the overriding objective), with a view to dealing with cases justly and at a proportionate cost. But how far does the current law effectively address the shortcomings? What dispensation, if any, should be applied?
The most recent guidance on LIPs was handed down in the Supreme Court earlier this year in Barton v Wright Hassall LPP (2018).
By a 3:2 majority, the Supreme Court refused relief under CPR 6.15 (2) to a claimant LIP who served a Claim Form on the defendant without first checking that they would accept service via email. This resulted in expiry of the Claim Form and the LIP being time barred from bringing their claim. The Court firmly rejected the suggestion the defendant solicitors should have alerted the claimant to his error.
This decision remains a strong indicator that, for the moment at least, there exists no special regime for LIPs to operate outside procedural rules. Similarly there is no particular duty for solicitors on the other side to warn of procedural deadlines.
How this guidance is applied is often a matter of fact and several cases show the courts taking different approaches in applying these principles.
Country Cars of Bristol Ltd v County Cars (SW) & Another (2018)
Here the defendant, acting as LIP served an Acknowledgment of Service and Defence on the claimant, albeit a few days late, but failed to file the document with the court. Judgment was entered in default as a result. Subsequently the defendant instructed solicitors who filed an application to set aside judgment the same day.
The High Court took account of the difficulties in failure to file with the court, due to the electronic filing system, as well as the lack of prejudice caused, and the fact there was a real prospect of the defendant successfully defending the claim. Judgment was set aside.
This case demonstrates there is some scope for relief in a scenario where a bonefide error of procedure has been made by the LIP, especially in circumstances where their prospects of defending the claim are good (and the considerations in CPR 3.9 would not lead to the opposite view).
EDF Energy Customers Ltd (formerly PLC) v Re–Energized Ltd (2018)
By contrast, the LIP claimant in this case (“an articulate and knowledgeable layman”) appeared on behalf of his company when appealing against a compulsory winding up order. The LIP advanced a number of arguments in this regard including that he was innocently misled by the petitioner’s solicitors into believing he could rerun arguments from the winding up hearing and that he was disadvantaged having not been legally represented at the first hearing.
The judge concluded that, whilst there was some discretion to “grant a special indulgence” upon considering relief from sanctions or on matters of promptness, the claimant should not receive special treatment just because he was a LIP. The winding up order stood.
A developing grey area
Dispensation for LIPs is afforded on a case by case basis. Ignorance of the law of procedural rules remains an invalid excuse and, as set out above, the court generally appear to be adopting a firmer approach since the decision in Barton v Wright Hassall.
However, with judicial discretion available and often exercised, this is an interesting area of development for practitioners and clients alike. Given the likelihood of an increase in LIPs it is important to consider strategy on a case by case basis but in all cases, the LIP should be reminded of their right to seek independent legal advice on a regular basis.
For more information, please contact Micaela Dempsey