The unrepresented party and the growing impact on insurance litigation

With cuts to legal aid and an ever-developing desire to see justice, the civil court system has experienced a rapid increase in money claim matters involving at least one unrepresented party.

This has not only impacted the judiciary and their approach to litigation, but has also had significant practical implications for the insurance industry and their legal representatives.

A party has always been able to represent themselves at their own choosing, but the reasons behind why someone would choose this option has seen rapid change.

Following the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (‘LASPO’), the availability of civil legal aid is now virtually non-existent, reserved for a very small number of practice areas such as family, housing and discrimination matters.

The Law

Perhaps somewhat uncomfortably, there is not one set definition of what an unrepresented party (or what is more commonly referred to as a ‘Litigant in Person’) is. Generally however it is accepted that a party is deemed to be unrepresented should they not have what is defined by CPR 2.3 as a ‘Legal Representative’ i.e. a solicitor, barrister or other recognised person.

Schedule 3 of the Legal Services Act 2007 stipulates that an exempt person can be a party to proceedings, and this is therefore the provision that allows the unrepresented party to conduct both their own litigation and advocacy without needing to instruct representation.

The Insurance Claim

Whilst they are less common (for now) in personal injury matters, the Property Risk & Coverage and Professional Indemnity teams at Keoghs often deal with unrepresented parties in a whole range of different claims from general property damage matters, contractual and service disputes and nuisance and neighbour disputes to name but a few.

Of course, before legal representatives are appointed on these matters, the insurer client has also had to deal with an unrepresented party in what can be increasingly complex claims.

Unrepresented parties are however generally afforded no procedural allowances just because they have chosen to conduct litigation without a legal representative.

The Supreme Court examined this concept in Barton v Wright Hassall LLP [2018] UKSC 12 whereby an unrepresented claimant was not allowed leeway in complying with the CPR where he had failed to serve proceedings ahead of limitation.

Whilst sometimes it can appear a perhaps lenient and sympathetic approach given to an unrepresented party, the court is compelled to give consideration to a party being unrepresented. Ultimately though CPR 3.9 states that a lack of representation is not in itself justification for relief from sanctions.

Practical Steps

When dealing with an unrepresented party it can ultimately increase the time in which a dispute takes to be settled regardless of value, both for the lawyer and insurer alike. In practice this may be, for example, additional time to comply with court directions or further clarification and explanation whilst conducting their advocacy.

An understanding for that party and their perhaps limited understanding of full court procedure, something which is second nature to practitioners, requires a careful and considered approach from the offset to limit extra time and legal cost incurred.

There have been numerous publications issued offering guidance to both practitioners and the judiciary but despite this, a subjective and tailored approach to claims is always best practice. General recommendations include using clear and jargon free language, ensuring that your legal knowledge is not used to gain unfair advantages, exercising patience and repeatedly reminding unrepresented parties to seek independent legal advice.

Important considerations also for insurance claims handlers- technical jargon concerning policy terms and conditions for example being used excessively, is likely to result in criticism if used to gain a procedural advantage.

The Future

With an increased volume of claims being issued online by the technologically savvy unpresented party and more guidance as discussed earlier for them, the volume of claims dealt with not featuring a legally represented opponent is only likely to increase in the coming years. This is regardless of whether the claim would fall into the small claim, fast or multi track. 

Ultimately, with the number of unrepresented parties looking almost certainly set to increase, it is a concept the insurance industry needs to quickly become accustomed to. We are likely to see a continued growing interest from legal representatives, insurer clients and the Association of British Insurers to accurately monitor unrepresented party numbers and their impact of cost and methodology through tailored MI recording.

However for now, a clear and concise strategy from the offset and maintaining professionalism, patience and fairness throughout can all help in removing the common misconception that an unrepresented party will always be problematic to insurance litigation, improving knowledge and understanding for the future.

For more information, please contact, Natalie Briscoe, Litigation Executive, Property Risks and Coverage, 01204 677082