Kerry Underwood

LITIGANTS IN PERSON: ACTING IN CASES INVOLVING THEM AND ADVISING THEM

with 4 comments


 

Look here for Kerry’s new course on this subject

In Jones v Longley & Others [2015] EWHC 3362 (Ch)

the Chancery Division of the High Court said that litigants in person are not subject to any special rules and are as liable as represented litigants to have costs orders made against them, here in favour of a solicitor personally.

This was a complicated contested probate matter but the key paragraph in relation to litigants in person is 43.

“43. Of course, I accept that the First Defendant is not a lawyer, but he is clearly an intelligent and articulate man, and in any event there are not two sets of rules, one for lawyers and one for laymen. If you embark on litigation without a lawyer, you cannot expect to be judged by rules different from those which apply to litigants legally represented.”

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 [2015] 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.

In Oyesanya v Mid-Yorkshire Hospital Trust [2015] EWCA Civ 1049.

Lord Justice Christopher Clarke criticised the defendant:-

“… I am surprised that the respondent, a Health Trust, thought it appropriate to plead the Limitation Act in order to resist paying the appellant the money which it accepted was owed to him for his work as a locum consultant – a course which, in the event, will have caused it much additional cost and expense.”

He also suggested that had the appellant continued as a Litigant in Person he may have lost, rather than won:-

“…it is largely as a result of the pro bono assistance of Mr Colton that the appellant has been able to vindicate his rights. Without it a different result might well have occurred.”

In Veluppillai v Veluppillai

Mr Justice Mostyn highlighted the actions of a Litigant in Person who sent abusive emails and assaulted his opposing counsel, to demonstrate the scale of the problems for courts in the face of “unrepresented and malevolent litigants”.

He said:-

“The public should be aware of the scale of problems that courts administering justice and implementing the rule of law have to face at the hands of unrepresented and malevolent litigants determined to do everything they can to destroy the process.”

Some commentators have pointed out that there have always been Litigants in Person and that very often they are a problem. Many commenting on the Law Society Gazette’s article pointed out that the appalling behaviour of this particular individual is the sort of thing that solicitors have to deal with day in and day out and that it might have been a good thing had the judiciary recognised this and recognised that that is one of the reasons that we should have qualified lawyers and not Alternative Business Structures, banks, insurance companies and any other Tom Dick and Harry being allowed to practise law and that that is why legal aid rates should be decent enough to attract decent lawyers. IMHO these commentators have a point.

Meanwhile a visitor from Planet Zog said that there is no evidence that the rising number of Litigants in Person has caused more delays in civil courts and that it was not proven that the court process had been slowed down by legal aid cuts forcing more people to represent themselves.

Unfortunately this visitor from Planet Zog is Natalie Ceeney, who is apparently Chief Executive of Her Majesty’s Courts and Tribunals Service and was giving evidence to the House of Commons Justice Committee.

When asked whether her agency had considered the effects of reducing legal aid she said:-

“[LiPs] have not actually increased the court budget or the demands on the court. Some [cases] take longer but some are shorter.”

It is reassuring that not a single Member of Parliament, nor judge, nor lawyer, nor legal journalist, nor indeed anyone on Earth, has agreed with Ms Ceeney. One wonders how she achieved her current position.

District Judge Peter Glover, who sits at Dartford County Court, and who is very much on the front line, in a letter to the Law Society Gazette and published on 26 October 2015 said that most District Judges have doubled time estimates to deal with LiPs – “Natalie Ceeney would know this if she had bothered to talk to us.”

The letter sets out the position better than I can:-

Letter from District Judge Peter Glover, Dartford County Court

“I read with interest your report on evidence given by Natalie Ceeney to the House of Commons justice committee. This concerned the budgetary and ‘demand’ consequences for HM Courts & Tribunals Service of the ever growing number of litigants in person. Some readers may recall that in 2011 the Gazette published my article predicting dire consequences for other court users of the then proposed removal of family and children cases from the scope of legal aid.

Well, it seems I must have been wrong, even though most district judges I know have, particularly in family and children cases, doubled time estimates to accommodate the need to explain process to, and deal fairly with, LiPs. As district judges deal with more than 90% of all civil and family cases, mostly in the county court, it is a pity that Bob Neill’s enquiry related to ‘circuit judges’, to whom Ms Ceeney speaks ‘very frequently’.

Perhaps they should both make contact with those who actually do most of this work and ascertain their views and experience. Practitioners, too, might express a contrary view, based on their experiences of increased waiting times. As for the statistical evidence to which Ms Ceeney referred, it would be interesting to know if it is derived from the same sources as the ‘estimated’ statistics released by the previous Lord Chancellor, which were roundly derided. Unfortunately, it would seem that empirical evidence is out of fashion.

Ms Ceeney may be right in saying that some cases take longer while others are shorter. My experience suggests that for shorter cases, such as small claims, possession claims and enforcement hearings, LiPs fail to turn up more frequently than parties with representation. Of course, since LASPO, many cases do not take place at all. The curtailment of public funding and continually increasing court fees have put access to court beyond the available means of huge swathes of citizens.

For the courts to go trundling on only because access to justice has been put beyond the reach of the general public is a tragic irony.”

Peter Glover, district judge, Dartford County Court

Indeed, how ironic that the court budget has not increased because fewer people can afford to go to court.

In Kishenin and Another v Bleach and Others [2015] EWCA Civ 1184 the Court of Appeal granted a litigant in person an extension of time for filing a Notice of Appeal even though the deadline for doing so had long gone and the application to extend time was made at the appeal hearing itself.

 

The litigant in person was one of four defendants and a company she controlled was another and she did not realize that she had to appeal separately on behalf of the company.

 

At the appeal hearing itself she applied for permission to file a Notice of Appeal out of time on behalf of the company and the Court of Appeal, in granting permission, applied the three stage Denton test and held that:-

 

  • the delay was serious or significant;

 

  • the excuse for the delay was that S, a litigant in person, did not realize that she also needed to appeal separately on behalf of T, the company she controlled;

 

  • it was just to extend time.

 

The circumstances were “truly exceptional”. S did not realise that in appealing only in her personal capacity she had not appealed on behalf of the company and a judgment against the company, could, in theory, result in proceedings against her under the legislation concerning the disqualification of directors.

 

The facts were exactly the same and the claimant was fully aware that for all intents and purposes S and T were the same party.

 

In its report implementing reforms to civil legal aid, 4 February 2015, the House of Commons Committee of Public Accounts, said that it had received evidence from the Magistrates’ Association  that the increase in the number of people representing themselves in court, caused by legal aid cuts, may have a negative impact on the administration of justice, especially in cases involving children (paragraph 4).

 

The Ministry of Justice’s Exceptional Case Funding Scheme, which is intended to provide legal aid for people whose human rights would be breached without it, is virtually moribund. Between 5,000 and 7,000 applications a year were expected; in fact just 1,520 were received and only 69, or 4.54% were approved.

 

At paragraph 5 the committee said:-

 

“5. The Ministry cannot manage the impact of the increase in litigants in person, because it still does not understand the impact that they have on the courts service. The Ministry acknowledged in 2012 that the number of LIPs was likely to increase as a result of the reforms. Yet it has still not improved its ability to monitor the impact of LIPs on the courts. It does not collect reliable data on how long individual court hearings take, and its recently published analysis of court hearing durations was based on inadequate information. It is therefore not able to say whether hearings in which people represent themselves are longer or shorter than those in which legal representatives are present and it will not accept the anecdotal evidence provided by the judiciary. The NAO [National Audit Office] identified a 30% rise in the number of cases starting in family courts in which both parties were LIPs. The NAO also identified an increase in the number of contested family cases reaching the courts, with the figure rising from 64% to 89%. The Magistrates’ Association told us that these cases with litigants in person take longer and place additional pressure on the courts service.

 

Recommendation: The Ministry should routinely collect reliable data on the operations of the court service, for example on hearing length, use of other court resources, types of case, and representation, and use this to better understand and manage the impact of LIPs.

 

The committee said that in the year following the legal aid cuts, there was an increase of 18,519 cases (30%) in which both parties were representing themselves in family courts. Within that figure there were 8,110 more cases involving contact with children in which both parties were LIPs in 2013/14 an increase of 89% from the previous year.

 

The report also said that judges have estimated the cases involving LIPs can take 50% longer than others and many legal professionals have said that they place additional demands upon court staff.

 

Bizarrely the Ministry of Justice told the committee that it did not believe the cases involving LIPs take longer than other cases and indeed suggested that those cases may be shorter than cases in which both parties are represented (paragraph 16 to 18 of the report).

 

The committee concluded:-

 

“17. The Ministry does not understand the impact of the increase in LIPs on court resources because it does not have reliable information about key aspects of the court system, particularly hearing lengths. The data that it collects on the representation status of litigants and the type and complexity of cases is also limited. The Ministry agreed that without this information, it cannot know what impact LIPs have on court costs. Research that the Ministry commissioned to examine the impact of LIPs recommended that follow up research is needed to examine the impact of legal aid reforms on the impact of LIPs on the court system.” (Paragraph 17)

 

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.

 

In Lindner v Rawlins [2015] EWCA Civ 61

 

a divorce case where both parties were litigants in person, the Court of Appeal said

 

“The task that would normally have been fulfilled by the parties’ legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.” (Lady Justice Black).

 

and

 

“All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges’ and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.” (Lord Justice Aikens).

 

 

The Lord Chief Justice’s Report 2014

 

The Lord Chief Justice, in his Report to Parliament pursuant to section 5(1) of the Constitutional Reform Act 2005 said:

 

“The escalating cost of using lawyers in civil litigation in circumstances where legal aid has never been available has coincided with the major legal aid reforms under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) which took effect in April 2013. This has resulted in a very significant rise in the proportion of litigants in person. This increase together with the time taken to control the costs of litigation through cost budgeting has placed a considerable strain on the civil justice system.

 

Although litigants in person have been a feature of the tribunals since their inception at the beginning of the twentieth century, outside the jurisdiction of the small claims procedure they have not been a common feature of the court system. Although litigants in person are not in themselves “a problem” for the courts, the issue for the courts and the Government is that the system has not developed with a focus on unrepresented litigants, and there is now an unprecedented increase in their incidence. The judiciary’s view, based on inquiries it has made albeit so far unsupported by full statistical evidence, is that cases are consequently taking longer.

 

Cases which may never have been brought or would have been compromised at an early stage are often fully-contested, and the take up of mediation and ADR has reduced. The judiciary is actively taking steps to provide litigants in person with access to justice in a proportionate manner. The steps taken include schemes in the Queen’s Bench and Chancery Division to provide pro bono help and simplified guides to litigation. The help that the courts have received from the Personal Support Unit and Citizens Advice Bureau has been immense. As discussed later in this section, the judiciary looks forward to further reforms to address this significant issue.”

 

The increase in Litigants in Person had prompted the publication of a number of guides:-

 

 

  • “A formal guide for Litigants in Person in interim applications” by the High Court;

 

 

 

 

The Civil Procedure (Amendment) Rules 20131, 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 below.

The Law Society, Bar Council and Chartered Institute of Legal Executives have issued joint guidance on how lawyers can best support a litigant in person (LIP) without this conflicting with their duties to their clients and the court.

 

In Minkin v Landsberg [2015] EWCA Civ 1152

 

the Court of Appeal said:-

 

“73. The District Judges, more than any other level of the judiciary, are finding their lists are overwhelmed as a consequence of the increase in court time taken by each case where (as is now routinely the case) the parties appear as litigants in person.

 

 

 

The guidance covers various areas of practice of conduct, including:

 

Communicating with LIPs

 

The guidance recommends adopting a professional, cooperative and courteous approach at all times, taking care to communicate clearly and avoid any technical language or legal jargon. Lawyers should recommend to a LIP that they seek independent legal advice, or direct them to other advice or support agencies. A list of sources of advice and information is annexed to the guidance, together with a note for LIPs explaining the extent of the assistance that an opponent lawyer can provide.

 

Explaining to clients

 

Lawyers should explain to their clients why they are giving assistance to the opposing party, emphasising that they have a professional duty to the court that may require the provision of procedural assistance to a LIP. A note for clients is annexed to the guidance.

 

Case management

 

The guidance states that a case involving a LIP might require more directions hearings than would usually be necessary, or a pre-trial review. It suggests that it may be helpful for such a case to be reserved to the same judge. If it ever appears that a LIP is heading towards non-compliance with a Case Management Order, lawyers should consider drawing this to the LIP’s attention.

 

The guidance also provides advice for dealing with instances where a LIP is assisted by a McKenzie Friend.

 

Source – Bar Council Litigants in Person: Guidelines for Lawyers (June 2015)

 

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.

CASE LAW

 

 

In R (Dinjan Hysaj) v Secretary of State for the Home Department and two other conjoined cases [2014] EWCA Civ 1633

 

the Court of Appeal considered whether the court should adopt a different approach to Litigants in Person in the context of applying the Mitchell/Denton criteria in relation to relief from sanctions, here in connection with appealing out of time.

 

The Court of Appeal held that the representation or not of a party is of no significance at the first stage of the enquiry, that is the assessment of the seriousness and significance of the failure to comply with the rules.

 

Whilst accepting that the second stage – the good reason stage – will depend upon the particular circumstances of the case the court said that it did “not think that the court can or should accept that the mere fact of being unrepresented provides a good reason for not adhering to the rules.”

 

“Litigation is inevitably a complex process and it is understandable that those who have no previous experience of it should have difficulty in finding and understanding the rules by which it is governed. The problems facing ordinary litigants are substantial and have been exacerbated by reductions in legal aid. Nonetheless, if proceedings are not to become a free-for-all, the court must insist on litigants of all kinds following the rules. In my view, therefore, being a litigant in person with no previous experience of legal proceedings is not a good reason for failing to comply with the rules.” (Paragraph 44).

 

The Court of Appeal did not then go on the consider the third stage of the Denton test here the court appears to have conflated the good reason test with the all of the circumstances test, thus falling into exactly the same error of law as it did in Mitchell.

 

Nevertheless the view is clear: no special rules for Litigants in Person, and that must be right.

 

The Court of Appeal went on to say, at paragraph 45:-

 

“45.        The Civil Procedure Rules are available free on line on the web site of the Ministry of Justice and to that extent are widely available. What the ordinary person requires, however, is more help in discovering and understanding the rules and some basic guidance about the way in which proceedings should be conducted. If, as seems inevitable, the courts can expect to see an increasing number of litigants in person, assistance of that kind will become essential if the administration of justice is not to be undermined.”

 

This was confirmed in Nata Lee Ltd v Abid [2014] EWCA Civ 1652

 

Where the Court of Appeal stated that a litigant in person does not have any special status in relation to procedural matters or relief from sanctions, although there may be cases where the fact that a party is a litigant in person may have an effect on such issues, but this will be ” at the margins.”

 

“53.        I make it clear at the outset that, in my view, the fact that a party (whether an individual or a corporate body) is not professionally represented is not of itself a reason for the disapplication of rules, orders and directions, or for the disapplication of that part of the overriding objective which now places great value on the requirement that they be obeyed by litigants. In short, the CPR do not, at least at present, make specific or separate provision for litigants in person. There may be cases in which the fact that a party is a litigant in person has some consequence in the determination of applications for relief from sanctions, but this is likely to operate at the margins.”

 

In calling for fixed solicitor and own client cots in family cases Mr Justice Mostyn had this to say in J v J [2014 EWHC 3654 (Fam)

 

“It might also have the beneficial consequence that the present volume of self-representation deriving from the wholesale withdrawal of legal aid from private family law cases is reduced. If a litigant on the cusp of self-representation new at the start of the case how much it was going to cost for each phase then he may well opt for representation. The benefits of representation are too obvious to spell out extensively. Far more cases with the benefit of representation settle, with the resultant avoidance of the legacy of heartache that contested litigation engenders. Those cases that do fight will be on rational and properly pleased justiciable issues. The lengthy delays in the court system caused by the explosion in self representation may be reduced.”

 

Documents

 

In East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293

 

the Employment Appeal Tribunal stressed the importance of marking those passages to be relied upon from authorities in the bundle, including cases, statutes, regulations and other material.

 

Failure to so mark “is unfair to a litigant in person.” Sufficient time must be given to the other party to consider the marked passages “especially if a litigant in person”.

 

The EAT stressed that passages should be marked in all cases but that where the other party is a litigant in person there is a risk that the case will have to be adjourned with costs being ordered against the lawyer failing to mark the passages.

 

Part 36 Offers and Litigants in Person

 

In UWUG Ltd and Haiss v Ball [2015] EWHC 74 (IPEC)

 

the High Court rejected the notion that any special consideration should be given to Litigants in Person in relation to Part 36 offers; “I accept the submission that litigants in person, like all litigants, must live with the consequences of ill advised procedural decisions.”

 

The Judicial Working Group on Litigants in Person has published a report making a number of recommendations to deal with the substantial increase in the number of Litigants in Person. The report suggests that there be additional training and guidance for the judiciary and that judges should deal proactively and robustly with vexatious litigants and in particular should declare appropriate claims and applications to be totally without merit and should use restraining orders to prevent individuals from issuing and pursuing claims.
The report suggests that there should be a special Civil Procedure Rule dealing with proceedings involving Litigants in Person and their need to obtain access to justice, while enabling courts to manage cases consistently with the overriding objective and that there should be a section added to CPR 3.1 allowing courts to handle such proceedings in a more inquisitorial form.

 

There should be a new rule regarding lay assistance and McKenzie Friends, including rules that govern the exercise of the right to reasonable assistance, the right to conduct litigation and the right to exercise rights of audience.

 

The Working Group has produced a handbook to help litigants in person understand and prepare for court proceedings and that is available on http://www.judiciary.gov.uk/publications-and-reports/guidance/2013/handbook-litigants-person-civil-221013.
The Civil Procedure Rules Committee has prepared draft guidance for lawyers acting against litigants in person. The draft guidance uses the quickly rejected term “self-represented litigant”.

 

“1. Where a self-represented litigant is involved in a case the court will expect the legal representatives for other parties in the case to do what they reasonably can to ensure that the self-represented litigant has a fair opportunity to prepare and put his or her case.

 

  1. Of particular importance in such a case are the existing duties of an advocate:

 

2.1 to ensure that the court is informed of all relevant decisions and legislative provisions of which he or she is aware (whether favourable to the case he or she is advancing or not); and

 

2.2 to bring any procedural irregularity to the attention of the court before or during the hearing.

 

  1. In the conduct of such a case, the legal representatives for other parties should take particular care:

3.1 to use language that the self-represented litigant will understand;

 

3.2 to keep to the timetable and the directions that the court has given in the case;

 

3.3 to give the self-represented litigant advance notice when the timetable cannot be met;

 

3.4 to co-operate if the self-represented litigant requires additional time and it is reasonable to agree that time; and

 

3.5 unless the court otherwise directs or allows, to copy to the self-represented litigant at the same time as they are provided to the court, every communication with the court in relation to the case, including written arguments.

 

  1. In preparation for any hearings, the court will expect the legal representatives for other parties to the case to ensure that:

 

4.1 all necessary bundles of documents are prepared and provided to the court (unless the self-represented litigant confirms that he or she will undertake that work);

 

4.2 copies of the bundles are provided to the self-represented litigant at the same time as they are provided to the court;

 

4.3 unless it is wholly unavoidable, written arguments and documents are provided to the court and the self-represented litigant in good time before any hearing; and

 

4.4 where necessary, the order made by the court is drawn and sealed promptly (unless the self-represented litigant confirms that he or she will undertake that work).

 

  1. At all times the legal representatives for other parties are expected to treat the self-represented litigant with courtesy and respect and

 

5.1 in correspondence, to be polite and factual and not intimidatory;

 

5.2 before any hearing at court to be ready and willing to speak to the self-represented litigant about any matter which can reasonably be answered or discussed prior to the hearing if the self-represented litigant has any questions or wishes to raise any matters; and

 

5.3 after any hearing at court, unless there is good reason to the contrary, to be ready and willing to speak to the self-represented litigant about the outcome of the hearing and any orders made by the Court.”

 

The massive increase in the number of litigants in person and the ever increasing complexity of CPR 36 are causing the courts problems; in particular the court has to consider to what extent a solicitor should explain to a litigant in person what a Part 36 offer is and the consequences of accepting or not accepting such an offer.

 

In Kunaka v Barclays Bank [2010] EWCA Civ 1035

 

the Court of Appeal gave guidance.

 

There a claimant acting in person accepted the defendant’s Part 36 offer three months late and the defendant bank had not pointed out to the claimant the consequences of late acceptance.
There the Court of Appeal held that it had to take into account that the claimant was a litigant in person and ordered that there be no order as to costs from 21 days after the date when the offer was made with the claimant recovering costs up until then. Thus the lack of explanation by Barclays Bank meant that they did not get post expiry costs as would usually be the case.
The issue was considered in May 2015 by a District Judge in Liverpool County Court in a personal injury claim where a claimant had been represented pre-issue but had become a litigant in person.

 

She claimed £1.4 million and tried to increase the value of the claim to over £4 million but ultimately accepted, in April 2015, the defendant’s Part 36 offer of £50,000.00 which had been made one year earlier but she disputed that she should pay costs for the 11 months between expiry of the offer and acceptance.

 

The defendant’s letter making the Part 36 offer set out the costs consequences in detail and both counsel and solicitor for the defendant attempted, without success, on more than one occasion to discuss settlement with the claimant. The defendant’s solicitor then sent a five page letter to the claimant setting out clearly and plainly how the claim would be valued at trial, the defendant’s view of the likely outcome and the consequences of accepting the defendant’s offer late and of not beating it.

 

The defendant’s solicitor invited the claimant to contact him and gave her his direct dial telephone offer.

 

She rejected the offer.

 

At a costs hearing the judge commented that although the CPR applied equally to litigants in person and represented parties he was well aware that Part 36 was complex. However the defendant’s solicitor had made every effort to explain the costs consequences and therefore it was just to make the normal order with regard to costs.

 

Thus the claimant was ordered to pay the defendant’s costs incurred from 21 days after the offer and also the costs of the costs hearing.

 

It is most important that when faced with a litigant in person the solicitor acting for the other party does absolutely everything possible to ensure that the litigant in person is fully aware of the consequences of Part 36 offers and the consequences both of acceptance and rejection.

 

 

Failure to Attend Trial

 

In Tinkler and another v Elliott [2012] 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”.

– See Regency Rolls Ltd v Carnall [2000] EWCA Civ 379.

 

(*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 [2012] 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) [2005] EWCA Civ 1507 [2006] 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 [1997] 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 [2003] 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)).

 

Additional Research

 

 In Grand v Gill [2011] EWCA Civ 902 the court followed the decision in R v Legal Services Commission Ex Parte Wulfsohn [2002] EWCA Civ 250 that a reasonable sum for time spent on research is recoverable.

 

Proportionality

 

 Proportionality applies in full to Litigants in Person.  In Grand the court reduced the costs from £15,000 claimed to £707.77.

 

Trial Costs

 

 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) [1984] 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 loss, together with any additional CPR 45.39 costs.

 

Advice re Fundamental Dishonesty 

 

The Judiciary Working Group Guide for Litigants in Person, prepared by six Circuit Judges, states:-

 

“Too often (indeed far too often) witnesses who have had statements prepared for them by solicitors tell the Judge that matters in the statement are not correct; they say (all too believably) that they simply signed what the solicitor had drafted for them without reading it through carefully and critically.”

 

It is of extreme importance that solicitors check with their clients that they have read and understood every word of their statement.

 

Careful attendance notes should be made. A separate statement should be signed by the client and kept on file and be along the lines of:-

 

“I have read and understood my Witness Statement and I have had any parts that I was unsure about explained to me and I confirm that the statement is true and accurate in every regard. I understand that any inaccuracy in my statement may lead to my whole claim being thrown out and me being ordered to pay the other side’s costs as well as my own solicitor’s costs and disbursements.”

 

Miscellaneous

 

Postage, telephones, copying etc are treated as unrecoverable office overheads for legal representatives.

 

In Mealing-McLeod v The Common Professional Examination Board [2000] 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) [2005] EWCA Civ 1507, [2006] 1 All ER 900, [2006] 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.

 

Bizarrely the Premier League, one of the richest organisations in the country, fall in to a similar trap. In bringing private criminal prosecution against those live streaming Premier League football matches without permission they instructed a non-law firm, Media Protection Limited, to lay the information.

 

Laying an information is, unsurprisingly, a reserved legal activity. Thus the informations were nullities and all of the convictions quashed. One week’s pay of virtually any Premier League footballer would have paid all the legal bills.

 

Below is the text of CPR 46.5 with effect from 1 April 2013, as created by The Civil Procedure (Amendment) Rules 2013.

 

CPR 46.5

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—

 

  • costs for the same categories of—
    • (i) work; and
    • (ii) disbursements,

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;

 

  • the payments reasonably made by the litigant in person for legal services relating to the conduct of the proceedings; and
  • 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—

 

  • 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

 

  • 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 company or other corporation which is acting without a legal representative; and

 

  • 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).

 

Practice Direction

 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 –

  • barrister;
  • solicitor;
  • Fellow of the Institute of Legal Executives;
  • Fellow of the Association of Costs Lawyers;
  • law costs draftsman who is a member of the Academy of Experts;
  • 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.

 

  • 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.
  • 2007 c.29.

 

I am grateful to Regional Costs Judge Ian Besford for much of the information in this piece.

1

SI 2013/262.

 

READER COMMENTS:-

 

Comment from Mel on 26 October 2015:-

 

Dear Mr Underwood, I am a litigant in person but am told by opposing counsel that East of England Ambulance Service NHS Trust v Sanders [2015] ICR 293 does not apply to Civil courts (High Court), but only for Employee Tribunals. Is this correct? Thank you

 

Kerry Underwood’s reply:-

 

Mel

I cannot comment on individual cases and do not know the facts of your matter. However there is nothing in that case suggesting that it applies only to Employment Tribunals. On the contrary I would expect it to be applied even more rigorously in the courts as compared with the Employment Tribunals as generally tribunals have a looser procedure to reflect the fact that it has always had a relatively high number of litigants in person compared with the “ordinary” courts. I would certainly not regard it as acceptable for a Circuit Judge or a High Court Judge to carry out internet research, without prior notification to the parties, and rely on that research, rather than the evidence in court, on reaching a decision and I have never heard of it happening.

The court here itself, said the “tribunal judge persisted in asking that question, which might be thought leading if asked in a traditional courtroom.” – the relevance of that being that the EAT here allowed the appeal because of the employment tribunal’s conduct, whilst making the point that the procedure in the employment tribunal is allowed to be more relaxed than in a traditional court room. This is dealt with at some length in paragraph 28 of the judgment.

Again at paragraph 31 ” Accordingly it is quite likely that there will be a degree of intervention in proceedings before a tribunal which might raise some eyebrows in civil courts.”

At paragraph 34 ” In accessing the Internet, it did what in or view it should not have done.”

My view is that the decision applies with even more force in the County Court/High Court.

Kerry

 

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Written by kerryunderwood

November 25, 2015 at 7:57 am

Posted in Uncategorized

4 Responses

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  1. […] Litigants in Person: Acting in cases involving them and advising them […]

  2. […] Litigants in person: acting in cases involving them and advising them […]

  3. […] Litigants in person: acting in cases involving them and advising them […]

  4. Interesting to read, and gives much insight to the narrow view points held and quite sweeping generalizations, so much so that it would not be reach in claiming that the overriding objective has been lost from sight.

    Of course Lip,s slow the system in general but clearly it is the system that has brought it about, you cannot presume that drastic cuts in legal funding without robust alternative solutions would cause any other consequence. Add to this, the general and building distrust of the legal profession, from the often ill prepared and disingenuous lawyers losing sight of client requirements and reasonable expectation for the sake of revenue, you then add the viewpoint held by not only lay people but from within the profession,that the substantive damage is done by the judges, with inconsistent management of case conduct,inconstant consideration of evidence, inconsistent application of statute and common law requirements and provisions inconsistent consideration and application of case law and established principle, you quickly arrive at inconsistent judgments and case outcomes, it is my consideration that far too many believe or at least consider that justice is so inconsistent that it has become a lottery, so unpredictable it is only an arena for chancer,s, save for the occasions where those of the system with pure mind come together and the judgement arrived at, stands all reasonable test, sadly becoming to much of a rarity.

    Wayne Elliott

    April 14, 2017 at 6:19 pm


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