Kerry Underwood

LITIGANTS IN PERSON: TWO CASES: TWO APPROACHES

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In September and October I am delivering my new course – Getting the Retainer Right – in 10 cities – details and booking form here.

Lenient Approach by Court

In Country Cars of Bristol Ltd v County Cars (SW) Ltd and another [2018] EWHC 839 (IPEC)

the Intellectual Property and Enterprise Court, part of the High Court, considered a case where the defendants were acting in person and the claimant had entered judgment in default following the defendants’ failure to file an acknowledgment of service, even though they had served the acknowledgment on the claimant, albeit a few days later.

The High Court set aside the judgment, and is a rare recent example of the court adopting a lenient approach towards the mistakes of litigants in person, although there was a twist in the tale here in that there were problems with the court’s electronic filing systems.

The acknowledgment of service was due to be filed on 27 November 2017, and on the same date the defendants’ solicitors stopped acting for them and on 7 December 2017 the defendants, now litigants in person, served the acknowledgment and defence on the claimant, but failed to file either document at court and judgment in default was served on them on 18 January 2018.

On 31 January 2018 the defendants instructed new solicitors, who attempted to file an application to set judgment aside under CPR 13.3 on the very same day, and their evidence was that there was difficulty with the court’s electronic filing system causing them to be unable successfully to file that application until 20th February 2018.

Under CPR 13.3 the High Court considered that the delay between 17 January, when the defendants became aware of the default judgment, and 31 January when the attempt was made to file the application, was short and of little consequence, and the court found that the defendants were not culpable for the further delay between 31 January and the eventual filing of the application on 20 February as the judge accepted that this might have been due to the court’s electronical filing system.

Applying the test in CPR 3.9 the judge found that the breach was serious or significant, but he held that the reasons for this were that the defendants were not represented and that they believed that they had done what was required in serving the acknowledgment, but not filing it.

Taking into account the lack of prejudice, and the fact that there was a real prospect of the defendants successfully defending their claim, the judge was satisfied that there were grounds of setting aside the default judgment under CPR 13.3 and that the requirements under CPR 3.9 did not lead to the opposite view.

 

Hardline in Employment Tribunals

In Green v Mears Ltd [2018] EWCA Civ 751

the Court of Appeal rejected an appeal against an order of the Registrar at the Employment Appeal Tribunal refusing an extension of time to a litigant in person who was more than two months late in lodging the appeal, and who argued that he was computer-illiterate and did not access the judgment booklet online, or asked anyone for help.

Any perceived relaxation of the rules in the ordinary courts, following the decisions in the Mitchell and Denton cases did not supersede the decision in

United Arab Emirates v Abdelghafar & Anor [1995] ICR 65 EAT .

In so far as there was any difference of approach between Abdelghafar and Denton, Abdelghafar still governed Employment Tribunal proceedings.

Even if the Denton guidance should have been applied in this case, the appeal would have failed in any event and a divergence of approaches between the Civil Courts and the Employment Tribunal system was legitimate.

The Court of Appeal held that Mr Green, representing himself, received the Employment Judge’s decision and reasons in October 2013 and had until 12 November 2013 to lodge an appeal to the Employment Appeal Tribunal.

He twice made an application for a reconsideration by the Employment Tribunal and was refused both times, the second time being in December 2013.

It is settled law that an application for a reconsideration or review by the Employment Tribunal of its own decision does not stop time running in relation to the lodging of an appeal with the Employment Appeal Tribunal.

Mr Green lodged an appeal with the correct documentation on 24 January 2014, that is 73 days out of time.

Mr Green argued that he was wrongly advised by staff that the original tribunal to await the outcome of his reconsideration application before lodging any appeal and he said that he found the appeal process to be “a daunting prospect”.

The Employment Appeal Tribunal found that neither of those reasons constituted exceptional grounds on which to grant an extension.

In Abdelghafar the Employment Appeal Tribunal had refused an extension of time, even though the default had not caused any prejudice to the successful party in the original proceedings and that approach had been upheld on at least three occasions by the Court of Appeal.

The Court of Appeal has frequently been unhappy with the strict approach adopted in the Employment Appeal Tribunal, but has always declined to interfere.

 

In Woods v Suffolk Mental Health Partnership NHS Trust [2007] EWCA Civ 1180

 

the Court of Appeal observed that “ the denizens of the Employment Appeal Tribunal seem to be a hard -hearted lot” in whose blood “mercy flows thinly”, and here the Court of Appeal used those quotes in this decision.

The Court of Appeal here also quoted from Jurkowska v HLMAD Limited [2008] EWCA Civ 231:

 

“65. This court has more than once approved the policy adopted by the EAT for the administration of the statutory rule requiring any appeal to be instituted within 42 days of the sending out of the tribunal’s reasons. It is a policy which is unforgiving, but it has never been suggested that its effect is to stifle the discretion given by the rule to enlarge time. Its purpose and effect can nevertheless fairly be said to be an equality of misery: anyone who is caught out by the 42-day time limit has, barring something quite exceptional, only himself or herself to blame for leaving it so late to institute their appeal. But one has only to consider the alternatives to see why the policy is justifiable: either any honest excuse would be capable of securing an enlargement of time, shifting the focus to how long a consequential delay might be pardoned in one case or another; or a checklist of acceptable and unacceptable excuses would develop, distinguishing between such things as transport delays, postal delays, administrative oversights, lack of funds, staff sickness, late advice and so forth. This is why judges of this court from time to time find themselves denying permission to appeal from a refusal of the EAT to waive a delay of a few minutes or hours in the delivery of appeal papers to its registry, where they would not have hesitated to enlarge time had there been a similar lapse in filing the papers in the Civil Appeals Office.”

 

Meanwhile in Vosland

The Chancellor of the High Court Sir Geoffrey Vos in a bizarre speech, which I will report elsewhere, and delivered to the Law Society on 8 May 2018 said:

 

“35. This online world has allowed the litigant in person to flourish. Indeed, many of the online dispute resolution processes are designed to allow individuals to deal by themselves with their small legal cases.”

 

I am unaware of any other member of the judiciary who shares this view. Indeed there is overwhelming evidence, both from the criminal and civil judiciary,that litigants in person are struggling to get justice, while at the same time slowing down the whole court process.

The two decisions here demonstrate that fact.

 

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Written by kerryunderwood

August 29, 2018 at 10:23 am

Posted in Uncategorized

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