In the current climate of drastic reductions to legal aid, restrictions on conditional fee agreements and the proposed increase to the small claims track limit, it is generally accepted that the upward trend of litigants in person appearing in courts up and down the country will continue.
Court treatment of litigants in person (“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 if 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 proportionate cost. But how far does the current law effectively address these shortcomings? What dispensation, (if any), can LiPs reasonably expect?
The most recent court guidance on LiPs was handed down by the Supreme Court earlier this year in Barton v Wright Hassall LLP [2018] UKSC 12. By a 3:2 majority, the Supreme Court refused relief, under CPR 6.15(2), to a claimant LiP who had served the claim form on the defendant's solicitors without first checking that they would accept service by email. This resulted in the expiry of the claim form and the LiP being time-barred from bringing their claim.
The court went further, firmly rejecting the suggestion that the defendant's solicitors should have alerted the claimant to his error. Giving the lead judgment, Lord Sumption concluded:
"… they were under no duty to give [C] advice of this kind. Nor could they have done so without taking their client's instructions and advising them that the result might be to deprive them of a limitation defence. It is hardly conceivable that in the circumstances they would have authorised it." (Paragraph 22)
This decision is a strong indicator that, for the moment at least, there exists no special regime for LiPs who operate outside procedural rules, and no duty upon the solicitors on the other side to warn of procedural deadlines.
How this guidance is applied is often a matter of fact and degree. These (subsequent) cases evidence the differing approaches taken by the courts in applying these principles.
The defendants, acting as litigants in person, served an acknowledgement of service and defence on the claimant, albeit a few days late, but failed to file either document. Judgment was entered in default against them as a result. Subsequently, the defendants instructed solicitors, who attempted to file an application to set judgment aside under CPR 13.3, on the same day.
The solicitors' evidence was that there was difficulty with the court's electronic filing system and the LiPs tried, but were not able to file the acknowledgement.
The High Court took account of this, as well as the lack of prejudice caused and the fact that there was a real prospect of the defendants successfully defending the claim. It set aside the judgment entered in default.
This case demonstrates that there is at least some scope for relief in a scenario where a LiP has made a bona fide error of procedure in circumstances where they otherwise would have good prospects of defending the claim (and the considerations in CPR 3.9 would not lead to the opposite view).
By contrast, this is a matter in which the LiP claimant ("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 re-run 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 is some discretion to “grant a special indulgence” at the margins when 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 would stand.
Dispensation for LiPs is therefore afforded on a case by case basis. Ignorance of the law or procedural rules remains an invalid excuse and, as set out above, generally the courts appear to be adopting a firmer approach since the decision in Barton v Wright Hassall.
However, with judicial discretion available and often exercised in these cases, this is an interesting area of development for practitioners and clients alike.
If you require any further information about any of the cases discussed above, or simply wish to discuss the matter generally, please contact Mathew Hughes at mhughes@keoghs.co.uk.
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