In March 2018, Sir Terence Etherton identified that permission to appeal applications made by litigants in person (“LiPs”) in the civil division of the Court of Appeal stood at 42% of all applications for the 12 months ending 31 January 2018. Given that nearly half of all Court of Appeal matters now involve LiPs, it is important for both represented parties and potential LiPs to be aware of the latest developments concerning their treatment by the courts.
Generally, represented parties should take into account their opponent’s unrepresented status, for example by preparing trial bundles when the burden would normally fall on the LiP. This is not likely to change. However recent decisions show that LiPs are not able to blame non-compliance with important legal provisions merely on their unrepresented status.
The most important decision of the year so far is that in Barton v Wright Hassall LLP [2018] UKSC 12. In this case, an LiP issued a claim form and elected to serve this on the defendant himself. On the last day prior to the deadline for service of the claim form, the claimant emailed the defendant’s solicitors, attaching the claim form by way of service.
However he had not obtained permission from them to serve the claim form electronically, and he was subsequently informed that as they had not indicated that they would accept service by email, the claim form had expired and the action was now statute-barred. The claimant made an application for an order validating service retrospectively, and this proceeded to the highest appellate court.
The Supreme Court found that, although in the current climate of cuts to legal aid acting as a LiP was not always by choice, “it will not usually justify applying to litigants in person a lower standard of compliance with rules or orders of the court”. The Civil Procedure Rules provide a framework within which to balance the interests of both sides, and if a LiP was entitled to greater indulgence in complying with these rules then this would affect that balance. Unless the rules in question were “particularly inaccessible or obscure”, a LiP should familiarise himself with any relevant rules which apply. The rules in this instance were not inaccessible or obscure, and so the claimant’s appeal was dismissed.
Interestingly, the Supreme Court also stated that although the defendant’s solicitors could have warned the claimant that they did not accept service by email, they were under no duty to do so.
Similarly, in Reynard v Fox [2018] EWHC 443 (Ch), the claimant argued that because he was an LiP, it would be unjust for his claim to be struck out because it had not been brought under the correct provision, as he did not have a detailed knowledge of insolvency regulations. However the judge determined that none of the rules in question were “hard to find, difficult to understand or …ambiguous”, and the claimant was an intelligent litigant who had learned a great deal about insolvency law and procedure. Accordingly, no injustice arose merely due to the claimant’s status as a LiP.
The position was further considered in EDF Energy Customers Ltd v Re-Energized Ltd [2018] EWHC 652 (Ch), in which the defendant company’s director appeared on its behalf.
In considering whether the LiP should have been allowed to adduce arguments at a hearing of a winding-up petition which he had already made during an application for an injunction which had been dismissed, the judge emphasised that the LiP was not the only party to consider, and that delays and lack of finality impacted on the represented party and the courts as well. It would not be right to allow a party to act in person at first instance, and if the result went against them, to allow them to appeal with legal representation and present the same arguments again, or arguments which could have been made but which were not.
The judge derived the following principles from existing case law:
1. There is a general duty on tribunals to assist litigants, depending on the circumstances, but it is for the tribunal to decide what this duty requires in any particular case and how best to fulfil it, whilst remaining impartial.
2. The fact that a litigant is acting in person is not in itself a reason to disapply procedural rules or orders or directions, or excuse non-compliance with them.
3. The granting of a special indulgence to a litigant in person may be justified where a rule is hard to find or it is difficult to understand, or it is ambiguous.
4. There may be some leeway given to a litigant in person at the margins when the court is considering relief from sanctions or promptness in applying to set aside an order.
Accordingly, it appears that LiPs will only be able to rely on the ‘excuse’ of being a LiP in limited circumstances. They should take care to ensure they are familiar with all relevant steps in the litigation, or face the consequences. Represented parties should be mindful of the level of assistance that they are expected to provide to assist the Court and their opponent when they are dealing with an LiP.
For further information or advice in relation to the above, please contact Courtney William-Jones.
