LITIGANTS IN PERSON: ACTING IN CASES INVOLVING THEM
The courts are experiencing a very significant increase in the number of Litigants in Person following the sharp increase in legal fees to be paid by individuals as a result of the Jackson reforms, and the virtual abolition of civil legal aid. This is already causing problems in the courts as cases involving Litigants in Person take much longer than those involving represented parties.
Indeed The Spectator, 20 February 2014, hardly a journal of the left, says “the number of them has exploded” since “the government slashed legal aid in April of last year.” (2013), and that the majority of trials now have at least one unrepresented party. One barrister commented that “the man in the street has as much chance of dealing with these issues as building their own rocket to the moon.” It is a fascinating article and needs to be read.
The increase has prompted The Supreme Court of the United Kingdom to publish “A guide to proceedings in the Supreme Court for those without a legal representative.” (February 2014). This is a short and helpful guide which lawyers will also find useful.
On 1 October 2015 a new rule was introduced in relation to case management of matters involving litigants in person and this was achieved by the 81st update to the Civil Procedure Rules.
” Case Management- unrepresented parties
3.1A – (1) This rule applies in any proceedings where at least one party is unrepresented.
(2) When the court is exercising any powers of case management, it must have regard to the fact that at least one party is unrepresented.
(3) Both the parties and the court must, when drafting case management directions in the multi-track and fast track, take as their starting point any relevant standard directions which can be found online atwww.justice.gov.uk/courts/procedure-rules/civil and adopt them as appropriate to the circumstances of the case.
(4) The court must adopt such procedures at any hearing as it considers appropriate to further the overriding objective.
(5) At any hearing where the court is taking evidence this may include-
(a) ascertaining from an unrepresented party the matters about which the witness may be able to give evidence or on which the witness ought to be cross-examined; and
(b) putting, or causing to be put, to the witness such questions as may appear to the court to be proper.”
Meanwhile in Akcine Bendore Bankas Snoras (in bankruptcy) v Yampolskaya  EWHC 2136 (QB)
the Queen’s Bench Division of the High Court refused relief from sanctions to a litigant in person who had failed to file an appeal bundle in breach of an unless order.Her appeal was struck out.
The High Court gave guidance as to assessing defaults by litigants in person. They should not all be treated the same.The court may take into account the needs of a litigant in person who is impecunious or unable to speak English.
The High Court has also produced a formal guide for Litigants in Person in interim applications and no doubt more will follow.
The Civil Procedure (Amendment) Rules 2013, published on 13 February 2013, do not alter substantially the position in relation to Litigants in Person, but the relevant rule is now CPR 46.5, which I set out at the end of this piece. Here I do not deal with the problems in the criminal courts caused by the unavailability of counsel in Very High Costs Cases due to the reduction in legal aid fees, and other changes, in criminal cases.
Nor do I deal here with the problems caused for everyone, but especially Litigants in Person, by the Court of Appeal’s decision in Mitchell  EWCA Civ 1526, 27 November 2013 I deal with the whole issue of relief from sanctions in my piece: Relief From Sanctions.
Here I am largely dealing with the consequences for lawyers representing clients who are opposed by Litigants in Person, who were to be known by the Orwellian name of “self-represented litigants “. No doubt “self-operating patients” were soon to be with us. Fortunately the High Court has put a stop to that nonsense and Litigants in Person they remain.
In Tinkler and another v Elliott  EWCA Civ 1289 the self-representing Mr Elliott failed to attend trial but instead submitted a medical certificate of unfitness to attend court. The trial judge rejected this and granted the other party a permanent injunction and general restraining order against Mr Elliott.
On appeal the High Court set the judgment aside under CPR 39.3 holding that Mr Elliott had a good reason for not attending the original hearing.
The Court of Appeal restored the original court’s decision, holding that CPR 39.3 must be rigorously applied. Under that Part the court had no discretion to set aside a decision taken in a party’s absence until the applicant satisfied the three positive requirements of the rule.
The first requires that the applicant “has acted with all reasonable celerity* in the circumstances”.
(*Celerity – noun archaic – “swiftness, speed”. Appears below celeriac and above celery in the Oxford English Dictionary).
Mr Elliott had relied on his poor mental health and “his ignorance as a litigant in person of the availability of an application to set aside”.
The Court of Appeal held that Mr Elliott had been capable of acting as a litigant in person. However the significance of the case is the Court of Appeal’s findings in relation to his ignorance as a person representing himself.
The Court of Appeal said that “there may be facts and circumstances in relation to a litigant in person that may go to an assessment of promptness……they will only operate close to the margins,” and that “an opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person,” and that lack of understanding of procedures “does not entitle him to extra indulgence”.
This was in the context of a 21 month delay in Mr Elliott making his CPR 39.3 application, but the findings are of relevance generally and were not specific to this case.
In Fernandes v Kenny and Others, Court of Appeal, 23 October 2012
an unrepresented landlord applied to set aside a judgment for damages in respect of a deposit, the judgment having been entered at a small claims hearing which he had failed to attend.
The application to the District Judge failed, as did the first tier appeal to the Circuit Judge, who held that there was no discretion to hear an application made out of time.
The Court of Appeal held that the Circuit Judge had overlooked the fact that CPR3.1 allowed the court to extend the time limit set out in CPR27.11(2) but nevertheless found that the lower courts had been correct in finding that the landlord had had no good reason for failing to attend the original hearing.
However the Employment Appeal Tribunal has taken a different view in relation to litigants in person in Employment Tribunals, possibly influenced by the fact that such tribunals have historically been no-costs zones where individuals were expected to be able to represent themselves.
In AQ Ltd v Holden  IRLR 648
the Employment Appeal Tribunal held that a court was entitled to take in to account the fact that a party was a litigant in person in deciding whether to order costs against that party.
Although the law is the same whether a litigant is or is not professionally represented, the application of that law, and the court’s exercise of its discretion, must take in to account whether a litigant is professionally represented.
A tribunal cannot and should not judge a litigant in person by the standards of a professional representative.
Lay people are entitled to represent themselves in tribunals and, as legal aid is not available and they will not usually recover costs if they are successful, it is inevitable that many lay people will represent themselves.
Justice requires that tribunals do not apply professional standards to such people, who may be involved in legal proceedings for the only time in their life. They are likely to lack the objectivity and knowledge of law and practice brought by a professional legal adviser.
Even if the threshold tests for an order for costs are met, the tribunal has discretion whether to make an order, and that discretion must be exercised having regard to all of the circumstances.
However lay people should not regard themselves as immune from costs orders.
The EAT was here dealing with Rule 40(3) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, which provides that an order for costs may be made where the paying party in bringing or conducting proceedings has acted vexatiously, abusively, disruptively or otherwise unreasonably.
In January 2013 the High Court published a self-help guide for litigants in persons presenting cases to the interim applications court. The Guide has been written by Mr Justice Foskett and takes litigants through each stage of the process, from giving notice and presenting documents to how to behave in court, apply for costs and seek permission to appeal.
The interim applications court deals with short applications of an interim nature within existing or, sometimes, proposed proceedings in the Queen’s Bench Division of the High Court. It does not deal with family or matrimonial cases. The most commonly heard applications include applying for an injunction to prevent a former employee from abusing confidential information, setting up in competition or working for a rival employer; preventing travellers occupying a site in contravention of the planning laws; freezing orders to prevent the sale of property; and applying for the disclosure of specific documents.
The Guide will be kept under review and updated.
The right of a Litigant in Person to claim costs derives from The Litigants In Person (Costs and Expenses) Act 1975; there was no such right at common law.
The Act gives a Litigant in Person the right to recover “sums in respect of any work done, and any expenses and losses incurred, by the litigant in or in connection with the proceedings to which the order relates”.
It applies to all civil and family courts, the Lands Tribunal and both the first tier and upper tribunals and most cost-bearing tribunals; by section 1(1) of the Act, only out of pocket disbursements are recoverable if costs are not recoverable.
CPR 46.5(6) below lists the categories of Litigants in Person. The fact that a party is represented for part of the proceedings does not prevent recovery for work done when not represented – see
Agassi v Robinson (HM Inspector of Taxes)  EWCA Civ 1507  1 All ER 900
A Litigant in Person should file and serve written evidence to show actual loss 24 hours before any hearing and if the costs are to be subject to detailed assessment then written evidence is to be filed with the notice of commencement. This will now virtually always be a provisional assessment.
Paragraph 52.4 of the Costs Practice Direction was amended with effect from 1 October 2011 to increase costs payable from £9.25 per hour to £18.00 per hour.
New CPR 46.5(5), replacing its identically worded predecessor, pre-empts double recovery by providing:
‘A litigant who is allowed costs for attending at court to conduct his case is not entitled to a witness allowance in respect of such attendance in addition to those costs.’
Litigants in person (LIPs) fall into two categories: those who can prove financial loss and those who cannot. The new rate of £18 an hour is compensation for time reasonably spent by those who cannot prove financial loss.
And what of those who can prove loss? There are two caps: first, they cannot recover more than they have lost. The second cap is that the litigant cannot recover more than two-thirds of the amount to which a solicitor would have been entitled. This limit does not apply to disbursements.
It is for the Litigant in Person to shown on the balance of probabilities that a financial loss has been suffered, and what that loss is.
In Mainwaring v Goldtech Investments Ltd  1 All ER 467 the court referred to the difference between:
“a self-employed tradesman in a small but profitable way of business who has more custom than he can cope with and can fill every working hour to advantage; at the other extreme, a retired civil servant with an index-linked pension who finds the conduct of litigation a more interesting pastime than bowls or crossword puzzles”.
In Joseph v Boyd and Hutchinson  EWHC 413 the court considered that it should adopt a broad brush approach in circumstances where work was done during hours when the Litigant in Person was available for work. It was not necessary to enquire to any great extent as to whether they would have been engaged on other business, but the Litigant in Person must show that s/he would have been gainfully employed and also how much would have been earnt.
If the loss is less than £18 per hour the Litigant in Person is better off claiming the flat rate of £18 per hour.
In any event the maximum two-thirds of what would have been allowed to a legal representative applies.
CPR 46.5(3) below sets out the categories of claim that Litigant in Person may make.
“Expert assistance” is defined in Practice Direction 46, Paragraph 3.1, as assistance from a barrister, solicitor, Fellow of the Chartered Institute of Legal Executives, Fellow of the Association of Costs Lawyers or a law costs draftsman who is a member of the Academy of Experts or the Expert Witness Institute.
Work done must be work that a legal representative would have undertaken and a disbursement must be one that would have been incurred by a legal representative. The Litigant in Person must choose whether the claim as a witness or a notional legal representative; s/he cannot claim both (CPR 46.5(5)).
In Grand v Gill  EWCA Civ 902 the court followed the decision in R v Legal Services Commission Ex Parte Wulfsohn  EWCA Civ 250 that a reasonable sum for time spent on research is recoverable.
Proportionality applies in full to Litigants in Person. In Grand the court reduced the costs from £15,000 claimed to £707.77.
A Litigant in Person cannot recover notional disbursements such as counsel’s fees where counsel was not instructed – see
Hart v Aga Khan Foundation (UK)  2 All ER 439.
It appears that in a fast-track trial where a Litigant in Person establishes a financial loss they are entitled to two-thirds of the sum allowable to the trial advocate, whatever the actual oss, together with any additional CPR 45.39 costs.
Postage, telephones, copying etc are treated as unrecoverable office overheads for legal representatives.
In Mealing-McLeod v The Common Professional Examination Board  EWHC 185 (QB) the court said
“A solicitor’s charging rate includes or takes account of the fact that he has support staff, secretaries, messengers and so forth. A Litigant in Person, for example, must himself post letters, takes files to court and photocopy documents. “The time spent reasonably doing the work…..” mentioned in CPR 48.6(4) permits a reasonable assessment of time spent by the Litigant in Person and should reflect those matters”.
However the phrase “time reasonably spent” no longer appears in the rule or practice direction and so it is questionable whether such costs can be recovered. It could be argued that these expenses are reflected in a legal representative’s hourly rate, but not in the much lower hourly rate of a Litigant in Person, who should therefore be able to recover such actual costs.
The consequences of a LIP not using a solicitor were demonstrated in Agassi v Robinson (Inspector of Taxes) (Bar Council intervening)  EWCA Civ 1507,  1 All ER 900,  1 WLR 2126. Mr Agassi retained a tax expert who was a member of the Chartered Institute of Taxation licensed to instruct counsel directly. No solicitors were involved. Mr Agassi was awarded his costs as a LIP. Were the tax expert’s fees recoverable as costs under the general costs provisions of CPR 48.6? The answer is no. Although Mr Agassi could recover counsel’s fee as a disbursement, he was not entitled to recover as a LIP costs as a disbursement in respect of work done by the tax expert which would normally have been done by a solicitor. That meant he was not entitled to recover the costs of the tax expert providing general assistance to counsel.
Below is the text of CPR 46.5 with effect from 1 April 2013, as created by The Civil Procedure (Amendment) Rules 2013.
Litigants in person
46.5.—(1) This rule applies where the court orders (whether by summary assessment or detailed assessment) that the costs of a litigant in person are to be paid by any other person.
(2) The costs allowed under this rule will not exceed, except in the case of a disbursement, two-thirds of the amount which would have been allowed if the litigant in person had been represented by a legal representative.
(3) The litigant in person shall be allowed—
(a) costs for the same categories of—
(i) work; and
which would have been allowed if the work had been done or the disbursements had been made by a legal representative on the litigant in person’s behalf;
(b) the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and
(c) the costs of obtaining expert assistance in assessing the costs claim.
(4) The amount of costs to be allowed to the litigant in person for any item of work claimed will be—
(a) where the litigant can prove financial loss, the amount that the litigant can prove to have been lost for time reasonably spent on doing the work; or
(b) where the litigant cannot prove financial loss, an amount for the time reasonably spent on doing the work at the rate set out in Practice Direction 46.
(5) A litigant who is allowed costs for attending at court to conduct the case is not entitled to a witness allowance in respect of such attendance in addition to those costs.
(6) For the purposes of this rule, a litigant in person includes—
(a) a company or other corporation which is acting without a legal representative; and
(b) any of the following who acts in person (except where any such person is represented by a firm in which that person is a partner)—
(i) a barrister;
(ii) a solicitor;
(iii) a solicitor’s employee;
(iv) a manager of a body recognised under section 9 of the Administration of Justice Act 1985 (a) ; or
(v) a person who, for the purposes of the 2007 Act(b), is an authorised person in relation to an activity which constitutes the conduct of litigation (within the meaning of that Act).
Litigants in person: rule 46.5
3.1 In order to qualify as an expert for the purpose of rule 46.5(3)(c) (expert assistance in connection with assessing the claim for costs), the person in question must be a –
(c) Fellow of the Institute of Legal Executives;
(d) Fellow of the Association of Costs Lawyers;
(e) law costs draftsman who is a member of the Academy of Experts;
(f) law costs draftsman who is a member of the Expert Witness Institute.
3.2 Where a self represented litigant wishes to prove that the litigant has suffered financial loss, the litigant should produce to the court any written evidence relied on to support that claim, and serve a copy of that evidence on any party against whom the litigant seeks costs at least 24 hours before the hearing at which the question may be decided.
3.3 A self represented litigant who commences detailed assessment proceedings under rule 47.5 should serve copies of that written evidence with the notice of commencement.
3.4 The amount, which may be allowed to a self represented litigant under rule 45.39(5)(b) and rule 46.5(4)(b), is £18 per hour.
(a) 1985 c. 61. Section 9 was amended by the Courts and Legal Services Act 1990, section 125(3), (7), Schedules 18 and 20; the Access to Justice Act 1999 section 106, Schedule 15 Part II; S.I. 2000/1119 regulation 37(3), Schedule 4 paragraph 15; the Legal Services Act 2007, section 177, 210, Schedule 16, Part 2, paragraphs 80 and 81 and Schedule 23; S.I. 2001/1090, regulation 1, 9, Schedule 5 paragraph 12; S.I. 2011/1716 article 4.
(b) 2007 c.29.
I am grateful to Regional Costs Judge Ian Besford for much of the information in this piece.