Litigants in Person – Special Treatment by the Courts?

15 Jul 2016

There are an increasing number of parties in civil proceedings that are deciding to represent themselves, as litigants in person. The reasons for this are not entirely clear but are likely to be linked to the significant increase in court fees, legal aid cuts, the public’s perception of legal professionals being expensive and, possibly, the fact that success fees under Conditional Fee Agreements (No Win, No fee) are no longer recoverable from the losing party.

The result of this is that the Courts are struggling to deal with how they treat litigants in person and there appears to be an inconsistent approach by the Courts. The key question is to what extent should the Courts exercise leniency towards a litigant in person and, if they do, is this unfair to the legally represented party?

In the recent case of Barons Bridging Finance 1 Limited & Ors v Barons Finance Limited (In Liquidation) [2016] EWCA Civ 550, the Court of Appeal allowed an appeal on the basis that the Appellants did not receive a fair trial.  In considering whether the Appellants had received a fair trial, the Court of Appeal appeared to suggest that the Courts should take into account when a party is a litigant in person (this is where the party does not have legal representation and they have chosen to represent themselves).

In that case, the Appellants were represented by Mr Gopee, appearing as a litigant in person.  The Court of Appeal appeared to accept that Mr Gopee had a somewhat chequered career in the Courts in relation to his conduct of the Respondent Company and his other associated money lending companies. The Court of Appeal found that whatever view the Judge took of Mr Gopee’s experience as a litigant, the Judge nevertheless should, in all the circumstances of the case, have given him, as a litigant in person, a proper opportunity to give evidence.

However, in contrast to the above is the recent case of Peter Malcolm Jones v David Charles Longley  & Ors [2016] EWHC 1309 (Ch). In that case, the Court struck out a counterclaim by a litigant in person as an abuse of process or as otherwise likely to obstruct the just disposal of the proceedings. The Judge confirmed that many of the problems stemmed from the fact that the Defendant was not a qualified lawyer. The Court also acknowledged that the Defendant was perfectly entitled to act for himself. However, there was only one set of rules, applicable to everyone, legally represented or not. The Courts could not, and did not, modify the rules for unrepresented litigants.

The Law Society has provided specific guidelines to solicitors dealing with litigants in person. Furthermore, the Courts are more likely to ask a represented party to undertake additional duties in proceedings, perhaps preparing bundles for hearings, which inevitably increase the represented party’s costs. Whilst the effect of dealing with a litigant in person should not be assumed to be negative, it is clear that the general impact of litigants in person upon the Courts is one of an increased demand on time, costs and resources.

Whilst there are no firm conclusions as to how the Courts might treat a litigant in person in a particular set of proceedings, there will obviously always be litigants in person in the Court system. Therefore, it is incumbent on represented parties to act fairly and courteously to litigants in person but it would seem inherently unfair to give them special treatment.

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